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The Court Ultimately Held That Pappas Had Demonstrated Substantial Need For The Documents That He Sought

Courts have generally relied on Hickman in holding the work-product doctrine continues to protect materials prepared in anticipation of litigation even after the litigation has terminated. We agree that the underlying purposes served by the work-product doctrine and articulated in Hickman can be preserved only if the protection attaches even after
litigation has terminated.  For this reason we hold the trial court erred in ruling the work-product doctrine did not apply in this case.

The court ultimately held that Pappas had demonstrated 'substantial need' for the documents that he sought.
In Dawson v. Daly and Limstrom v. Ladenburg, the Washington Supreme Court revisited the same question.  The Dawson court stated, 'The protection of the work product rule is triggered prior to the official initiation of
litigation and extends beyond the official termination of litigation.' The Limstrom court stated, 'The work product rule continues to protect materials prepared in anticipation of litigation even after the litigation has terminated.Drake relies on Johnson v. McCay.  In December, 1990, Johnson was a passenger in Turner's car when McCay rear-ended Turner's car.  Johnson incurred medical expenses, so she made a PIP claim against Turner's PIP carrier, Allstate.  Allstate demanded that Johnson submit to a PIP medical examination by Dr. Grow, and the examination took place in October, 1991. In March, 1992, Johnson sued McCay for negligence, and in June, 1993, the
case was tried.  When McCay wanted to call Dr. Grow as a witness, Johnson claimed work product protection.  The trial court sustained her claim, and McCay appealed.  Division Three stated: Had Ms. Johnson and Allstate been the litigants here, and had Dr. Grow been retained by Ms. Johnson, her attorneys, or her insurance carrier, his
medical evaluation of Ms. Johnson would clearly have been in anticipation of litigation.  But this litigation is between Ms. Johnson and Ms. McCay.

Allstate, the party requiring the medical examination, was neither a party nor the representative of a party.

Division Three went on to say that work product protection applies 'only insofar as the information sought was obtained for the very purpose of preparing for the litigation in question'; that 'Dr. Grow's medical examination  was not  in anticipation of this litigation'; and, similarly, that 'Dr. Grow's medical examination  was not performed in
anticipation of the instant litigation.  Division Three ultimately concluded that the trial court had erred by sustaining Johnson's claim of work product protection, but that the error was harmless under the particular circumstances.  Division Three seems to have reasoned in part that work product protection could have been claimed in the earlier PIP
proceeding between Johnson and Turner's PIP carrier (Allstate), but that work product protection could not be claimed in a different proceeding, including but not limited to the present tort litigation between Johnson
and McCay.  We think, however, that this reasoning runs counter to Pappas, Dawson, and Limstrom, and that we are obligated to follow the Supreme Court.  Accordingly, we hold here that work product protection did not
terminate when the Harris-USAA PIP proceeding terminated.

Our second termination-related inquiry is whether work product protection can be claimed after the end of the discovery phase of the case in which the claim is made.  The Washington cases uniformly answer yes. Here then, the work product protection that attached to Dr. Bede's facts and opinions on November 26, 1996 did not terminate before the date of
trial, April 10, 2001.

We turn next to whether work product protection was properly claimed at the trial of this case.  We inquire (1) who had standing to claim work product protection and (2) whether that person made a proper claim.  We refer to a
person with standing as a 'holder' of the privilege. 

In general, the holders of work product protection are the person who prepared a document or tangible thing in anticipation of litigation, or who retained an expert to acquire and develop facts and opinions in anticipation of litigation, plus that person's attorney, if any.  USAA retained Dr. Bede to acquire information and develop opinions that would
aid USAA in PIP litigation or PIP arbitration with Harris.  As far as the record shows, no attorneys were involved in the anticipated PIP proceeding.

Here then, USAA is the holder of the work product protection that attached to the facts and opinions that Dr. Bede acquired, prepared, and developed in anticipation of the Harris-USAA PIP proceeding.

Harris argues that USAA properly claimed work product protection in this case.  He reasons that USAA properly claimed work product protection over the telephone, or that he properly claimed such protection on USAA's behalf
in open court.  By citing and relying on Johnson, Drake responds in effect that USAA did not properly claim work product protection because it was not a party to the present case of Harris against Drake.  Relying on cases like
Mahler v. Szucs, Lenzi v. Redlands Insurance Company, and Fisher v.Allstate,50 Harris replies that USAA is a party to the present case even though it is not named as such.  He further replies, alternatively, that USAA can properly claim the privilege even if it is not a party to this case.

These contentions give rise to two questions that we address here, and a third that we need not address.  The two questions we address are (a) whether USAA can claim work product protection even if it is not a party to
this current case between Harris and Drake, and (b) whether USAA or Harris made a proper claim on USAA's behalf.  The question we need not address is whether USAA is a party here.

The first question is whether a person who prepared a document or tangible thing in anticipation of prior litigation, or who retained an expert who acquired and developed facts and opinions in anticipation of prior litigation, can claim work product protection only if he or she is a party to the present litigation.  The Supreme Court seems to have answered no;
Division One has squarely answered no; but Division Three seems to have answered yes.

The Supreme Court's apparent answer is found in Pappas, Dawson, and Limstrom.  In each of those cases, as discussed above, the Supreme Court ruled that a holder of work product protection can claim such protection even after the termination of the litigation in which the protection initially attached.  A necessary predicate is that a holder has a claimable interest in his or her work product even after he or she is no longer a party to the prior litigation; and that is very close to saying that a holder has a claimable interest even if not a party to any litigation. Division One's answer is found in Dever v. Fowler.1  The King County Prosecutor charged Dever with arson.  The prosecutor prepared various
documents in anticipation of trial, but then dismissed the charge before trial.  Dever then sued the investigating fire marshal and his employer, the City of Seattle, for malicious prosecution.  In the discovery phase of the civil case, Dever sought documents the prosecutor had prepared in anticipation of the criminal trial.  The prosecutor claimed work product
protection, even though he was not a party to the civil case.  Division One granted such protection, ruling as follows:
The language found in former CR 26(b)(3){now CR 26(b)(4)} does not limit work-product protection to parties to the instant litigation.  We conclude, 'based on the underlying purposes served by the work-product doctrine',
that protection under the work-product doctrine extends to documents prepared in anticipation of any litigation, regardless of whether the party from whom it is requested is a party in the present litigation.  Thus, the
work product rule extends to the documents prepared by the prosecuting attorneys.

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