WSR 07-01-025

STATE SUPREME COURT


[ Filed December 8, 2006, 2:10 p.m. ]

In the matter of the adoption of new GR 14.1, new GR 33 and the amendments to RAP 9.5, RAP 10.4, CR 10, CR 45, CR 53.4, CR 54, CR 78, CrR 4.4, CrR 4.7, CrR 4.8, CrR 7.8, RALJ 7.3, CRLJ 10 and CrRLJ 4.4 )

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ORDER

NO. 25700-A-863


The Washington State Bar Association having recommended the adoption of New GR 14.1, New GR 33 and the amendments to RAP 9.5, RAP 10.4, CR 10, CR 45, CR 53.4, CR 54, CR 78, CrR 4.4, CrR 4.7, CrR 4.8, CrR 7,8, RALJ 7.3, CRLJ 10 and CrRLJ 4.4, and the Court having approved the proposed new rules and amendments for publication;

Now, therefore, it is hereby

ORDERED:

(a) That pursuant to the provisions of GR 9(g), the proposed new rules and amendments as attached hereto are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Office of the Administrator for the Court's web sites in.

(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than April 30, 2007. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Camilla.Faulk@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 7th day of December, 2006.
For the Court
Gerry L. Alexander
CHIEF JUSTICE

GR 9 Cover Sheet

Suggested Amendment to General Rules (GR) - New Rule 14.1

concerning Citation to Unpublished Opinions


Submitted by the Board of Governors of the Washington State Bar Association





Purpose: This suggested new General Rule would, in all Washington Courts, (1) maintain the existing prohibition on citation to unpublished opinions of the Washington Court of Appeals (see RAP 10.4(h)); (2) allow citation to unpublished opinions issued by any court from a jurisdiction other than Washington State, but only if citation to that opinion is permitted under the law of the jurisdiction of the issuing court; and (3) require the party citing an unpublished opinion to file and serve a copy of it.

Concurrent suggested amendments to RAP 10.4(h), CR 10, RALJ 7.3(c), and CRLJ 10 will implement the new rule by referring parties in all cases to GR 14.1 as the sole rule governing citation to unpublished decisions.

This amendment is intended to resolve confusion at two fundamental levels. First, although RAP 10.4(h) clearly prohibits citation of unpublished opinions of the Court of Appeals, there is no similar prohibition for unpublished opinions issued by a court from a jurisdiction other than Washington State.1 In the absence of a clear rule, the Divisions of the Court of Appeals have taken differing approaches to the issue of whether parties may cite non-Washington unpublished decisions. See Mendez v. Palm Harbor Homes, Inc., 111 Wn. App. 446, 472-73, 45 P.3d 594 (2002) (Division III) (citation to unpublished opinions of other jurisdictions is "inappropriate"); Lindsay v. Pacific Topsoils, Inc., 118 Wn. App. 1037, 2003 WL 22121055, at *19 (2003) (Division I) ("This division has not ruled on the matter of citing unpublished opinions from out of state, and we see no need to do so now."); Starypan v. Metropolitan Park Dist. of Tacoma, 105 Wn. App. 1025, 2001 WL 285827, at *3 n.3 (2001) (Division II) (under Washington law unpublished opinions from other jurisdictions have no precedential value). Without resolving the issue of whether parties may cite to unpublished federal opinions, the Washington Supreme Court has both embraced and rejected such opinions. Compare Weyerhaeuser Co. v. Commercial Union Ins. Co., 142 Wn.2d 654, 678, 15 P.3d 115 (2000) (citing unpublished federal district court decisions as persuasive) with Washington Banker's Associations v. Washington Mutual Savings Bank, 92 Wn.2d 453, 462-63, 598 P.2d 719 (1979) (noting that unpublished federal decision cited by party had no precedential value). These inconsistencies highlight the importance of enacting a clarifying rule, because parties often seek sanctions for an opposing party's citation to unpublished opinions. See, e.g., Mendez, 111 Wn. App. at 472-73.

Second, the rules addressing the citation to unpublished decisions currently apply only in appellate proceedings. RAP 10.4(h); RALJ 7.3(c). Parties in other types of proceedings, including superior court cases, are therefore uncertain about what rules govern their ability to cite unpublished decision.

This proposal resolves these issues by establishing a clear rule in a new GR 14.1, which will apply to all Washington State court proceedings. The proposal has three basic components:

1. The suggested rule will maintain the current prohibition on citation to unpublished opinions of the Washington Court of Appeals at present contained in RAP 10.4(h). Among the many reasons behind this long-standing rule is that, by definition, those opinions lack precedential value. See RCW 2.06.040 ("Decisions determined not to have precedential value shall not be published."); see also RAP 12.3(d) (criteria to consider when determining whether to publish an opinion); State v. Fitzpatrick, 5 Wn. App. 661, 491 P.2d 262 (1971). The rule will continue to apply only to unpublished opinions of the Court of Appeals; it does not apply to citation to opinions or orders of other tribunals, such as orders issued by a superior court or court of limited jurisdiction.

2. This proposal recognizes that other jurisdictions may take a different approach to the issue of citation of unpublished opinions. The suggested rule therefore allows citation to an unpublished opinion of a non-Washington court only if citation to that opinion is permitted under the law of the jurisdiction of the issuing court. This proposal does not prescribe the weight a Washington court must give to an unpublished opinion. Although the proposal says that such an opinion may be cited "as an authority," a Washington court is free to determine whether the authority is persuasive or not.

3. The suggested rule requires the party citing an unpublished opinion to file and serve a copy of it, even if that opinion might be available on an electronic database. Because different electronic databases employ different formats, this requirement ensures that the parties and the court will literally be able to work from the same page of any unpublished opinion. Furthermore, because many electronic databases charge access fees, the service requirement avoids unfairly prejudicing a party that is unable to afford independent access to a cited unpublished authority.

The suggested rule both borrows and differs from new Federal Rule of Appellate Procedure 32.1, which was approved by the U.S. Supreme Court in April 2006 and will take effect on December 1, 2006 (unless Congress enacts legislation to reject, modify, or defer it). The new federal rule will allow parties to cite unpublished federal decisions issued after 2006, but the rule does not address the citation of unpublished decisions from non-federal courts. The Washington proposal uses the language from the federal rule to describe the various synonyms for "opinion" and "unpublished." And, like the federal rule, the Washington proposal requires parties to file and serve a copy of each cited, unpublished opinion (though the suggested Washington rule requires filing and service even if the opinion is available in an electronic database). Unlike Fed. R. App. P. 32.1, which permits citation of federal unpublished opinions in the federal courts, the Washington rule would retain the longstanding prohibition on citation of unpublished opinions of the Washington Court of Appeals in Washington courts. Assuming the federal rule goes into effect, new GR 14.1 will allow litigants in Washington courts to cite post-2006 unpublished federal decisions.


1 Only RALJ 7.3(c), in effect since September 1, 2005, and applicable only to review of decisions of courts of limited jurisdiction, addresses this issue directly by barring citation to any opinion of "any other state or federal court that is not published."


GENERAL RULES (GR)

[New Rule]


RULE 14.1. Citation to Unpublished Opinions



(a) Washington Court of Appeals. A party may not cite as an authority an unpublished opinion of the Court of Appeals. Unpublished opinions of the Court of Appeals are those opinions not published in the Washington Appellate Reports.

(b) Other Jurisdictions. A party may cite as an authority an opinion designated "unpublished," "not for publication," "non-precedential, "not precedent," or the like that has been issued by any court from a jurisdiction other than Washington state, only if citation to that opinion is permitted under the law of the jurisdiction of the issuing court. The party citing the opinion shall file and serve a copy of the opinion with the brief or other paper in which the opinion is cited.


GR 9 Cover Sheet


Suggested Amendment

GENERAL RULES (GR)


New Rule 33 - Requests for Accommodation by Persons with Disabilities


Submitted by the Washington State Access to Justice Board and the Washington State Bar Association





(C) Purpose

Suggested new General Rule 33, submitted by the Access to Justice Board and the WSBA, is intended to facilitate access to the justice system by persons with disabilities at all levels of court systems in the State of Washington. In order to address significant barriers experienced by persons with disabilities, the suggested rule establishes a uniform procedure for informing the court of a need for an accommodation and for the court to determine appropriate accommodations in individual circumstances. The suggested rule is further intended to accelerate the development of a comprehensive access management system to assure a clear, consistent, and effective approach to providing appropriate accommodations in Washington courts.

Both federal law (Americans with Disabilities Act of 1990, 104 Stat. 337, 42 U.S.C. 12131-12165) and state law (RCW Ch. 49.60) prohibit discrimination by state and local government agencies based upon disability. In 2004, the United States Supreme Court ruled that courts have the affirmative obligation under Title II of the Americans with Disabilities Act to reasonably accommodate persons with disabilities in order to ensure their fundamental right of access to courts. Tennessee v. Lane, 541 U.S. 509 (2004). The suggested rule will help to ensure that persons with disabilities have equal and meaningful access to the judicial system in Washington and guide courts in discharging this obligation as required by law.

Addressing requests for accommodation in the court system involves a multi-step process consisting of notification, assessment, and, as appropriate, accommodation. The first step requires an effective process for individuals to be able to notify the court of a need for an accommodation and the nature of the accommodation requested. Paragraph (a)(4) of the suggested rule defines the term "person with a disability," and paragraph (b) establishes a process for applicants to present accommodation requests during the normal course of a pending litigation or other proceeding. This process includes a procedure for the automatic sealing of medical and health information used in assessing the request. Second, the court to which an application is directed must evaluate whether to grant the requested accommodation. Paragraph (c) of the suggested rule designates the considerations applicable to the decision, and paragraph (d) describes the circumstances in which a requested accommodation may be denied. Finally, the court must enter an order granting or denying the application and, if an accommodation has been granted, the court must specify the nature of the accommodation to be provided. Paragraph (e) of the suggested rule identifies the required content of an order deciding an application for accommodation and mandates notice to the applicant and appropriate court personnel. Paragraph (a)(1) of the suggested rule defines "accommodation" and lists examples of the types of accommodations the court may provide. And, if an accommodation is ordered, paragraph (f) directs the court to prescribe the duration of the accommodation, which may be for an indefinite period or for a particular proceeding or appearance.

To assist in the successful implementation of the suggested rule, and to provide a practical guide for judicial officers and court staff in complying with Tennessee v. Lane and applicable federal, state, and local law, the Access to Justice Board's Impediments to Access to Justice Committee has also developed a guide for judicial officers and court staff, entitled Ensuring Equal Access for People with Disabilities: A Guide for Washington Courts, scheduled for publication and distribution in 2006. The Guide sets out options, devices, and services currently available to courts and other agencies to implement their duty to provide reasonable accommodations to persons with disabilities, including sign language interpreters, readers for people with visual impairments, personal assistants, appointment of counsel, and the like.

The suggested rule has been endorsed in principle by the Superior Court Judges Association and the District and Municipal Court Judges Association.


GENERAL RULES (GR)

NEW RULE 33. Requests for Accommodation by Persons with Disabilities



(a) Definitions. The following definitions shall apply under this rule:

(1) "Accommodation" means measures to make each court service, program, or activity, when viewed in its entirety, readily accessible to and usable by an applicant who is a qualified person with a disability, and may include but is not limited to:

(A) making reasonable modifications in policies, practices, and procedures;

(B) furnishing, at no charge, auxiliary aids and services, including but not limited to equipment, devices, materials in alternative formats, qualified interpreters, or readers; and

(C) as to otherwise unrepresented parties to the proceedings, representation by counsel, as appropriate or necessary to making each service, program, or activity, when viewed in its entirety, readily accessible to and usable by a qualified person with a disability.

(2) "Applicant" means any lawyer, party, witness, juror, or any other individual who has a specific interest in or is participating in any proceeding before any court.

(3) "Court" means any court or other agency or body subject to the rulemaking authority of the Supreme Court.

(4) "Person with a disability" means a person covered by the Americans with Disabilities Act of 1990 ( 42 U.S.C. 12101 et seq.), RCW 49.60 et seq., or other similar local, state, or federal laws. This term includes but is not limited to an individual who has a physical or mental impairment that limits one or more major life activities, has a documented history of such an impairment, or is regarded as having such an impairment.

(5) "Qualified person with a disability" means a person with a disability who is otherwise entitled to participate in any program, service, or activity made available by any court.

(b) Process for Requesting Accommodation.

(1) An application requesting accommodation may be presented ex parte in writing, or orally and reduced to writing, on a form approved by the Administrative Office of the Courts, to the presiding judge or officer of the court or his or her designee.

(2) An application for accommodation shall include a description of the accommodation sought, along with a statement of the impairment necessitating the accommodation. The court may require the applicant to provide additional information about the qualifying impairment to help assess the appropriate accommodation. Medical and other health information shall be submitted under a cover sheet created by the Administrative Office of the Courts for use by applicants designated "SEALED MEDICAL AND HEALTH INFORMATION" and such information shall be sealed automatically. The court may order that such information be sealed if it has not previously automatically been sealed.

(3) An application for accommodation should be made as far in advance as practical of the proceeding for which the accommodation is sought.

(c) Consideration. A request for accommodation shall be considered and acted upon as follows:

(1) In determining whether to grant an accommodation and what accommodation to grant, the court shall:

(A) consider, but not be limited by, the provisions of the Americans with Disabilities Act of 1990 ( 42 U.S.C. 12101 et seq.), RCW 49.60 et seq., and other similar local, state, and federal laws;

(B) give primary consideration to the accommodation requested by the applicant; and

(C) make its decision on an individual- and case-specific basis with due regard to the nature of the applicant's disability and the feasibility of the requested accommodation.

(2) If an application for accommodation is filed five (5) or more court days prior to the scheduled date of the proceeding for which the accommodation is sought, and if the applicant otherwise is entitled under this rule to the accommodation requested, the accommodation shall be provided unless:

(A) it is impossible for the court to provide the requested accommodation on the date of the proceeding; and

(B) the proceeding cannot be continued without prejudice to a party to the proceeding.

(3) If an application for accommodation is filed fewer than five (5) court days prior to the scheduled date of the proceeding for which the accommodation is requested, and if the applicant otherwise is entitled under this rule to the accommodation requested, the accommodation shall be provided unless:

(A) it is impractical for the court to provide the requested accommodation on the date of the proceeding; and

(B) the proceeding cannot be continued without prejudice to a party to the proceeding.

(4) If a requested accommodation is not provided by the court under subsection (c)(2) or (c)(3) of this rule, the court must offer the applicant an alternative accommodation.

(d) Denial. Except as otherwise set forth in subsection (c)(2) or (c)(3) of this rule, an application for accommodation may be denied only if the court finds that:

(1) the applicant has failed to satisfy the substantive requirements of this rule;

(2) the requested accommodation would create an undue financial or administrative burden;

(3) the requested accommodation would fundamentally alter the nature of the court service, program, or activity; or

(4) permitting the applicant to participate in the proceeding with the requested accommodation would create a direct threat to the safety or well-being of the applicant or others.

(e) Order. The court shall issue an order consistent with its decision. If the court denies a requested accommodation pursuant to section (d) of this rule, the order shall specify the reasons for the denial. If a requested accommodation is not provided by the court under subsection (c)(2) or (c)(3) of this rule, the court's order shall include a description of:

(1) the facts and/or circumstances that make the accommodation impossible under subsection (c)(2) or impractical under subsection (c)(3); and

(2) the reasons why the proceeding cannot be continued without prejudicing a party to the proceeding.

The court shall inform the applicant and the court personnel responsible for implementing accommodations that the request for accommodation has been granted or denied, in whole or in part, and the nature of the accommodation to be provided, if any.

(f) Duration of Accommodation. The accommodation ordered shall commence on the date set forth in the order granting the accommodation and shall remain in effect for the period specified in the order, which may be extended as the court deems appropriate. The court may grant an accommodation for an indefinite period or for a particular proceeding or appearance.


Comment


Access to justice for all persons is a fundamental right. It is the policy of the courts of this state to assure that persons with disabilities have equal and meaningful access to the judicial system. Nothing in this rule shall be construed to limit or invalidate the remedies, rights, and procedures accorded to any person with a disability under local, state, or federal law.


GR 9 Cover Sheet

Suggested Amendment to Rule of Appellate Procedure (RAP) 9.5

concerning Filing and Service of Report of Proceedings -- Objections


Submitted by the Board of Governors of the Washington State Bar Association





Purpose: This suggested amendment is based on a recommendation originally submitted by David Ponzoha, Clerk/Administrator of Division II of the Court of Appeals. The suggested amendment to RAP 9.5(d) changes an erroneous internal cross-reference in the rule.

This error was created by a 1990 amendment that moved provisions about settling the record from section (a) of the rule into a new section (c), concerning objections to and settlement of the report of proceedings. See 115 Wn.2d 1129-30 (1990). In section (d), the internal cross-reference to settling the report of proceedings should have been changed from "section (a)" to "section (c)," but this was overlooked.


RULES OF APPELLATE PROCEDURE (RAP)

RULE 9.5 FILING AND SERVICE OF REPORT OF PROCEEDINGS -- OBJECTIONS



(a) - (c) [Unchanged.]

(d) Substitute Judge May Settle Report of Proceedings. If the judge before whom the proceedings were held is for any reason unable to promptly settle questions as provided in section (ac), another judge may act in the place of the judge before whom the proceedings were held.


GR 9 Cover Sheet

Suggested Amendment to Rule of Appellate Procedure (RAP) 10.4

concerning Preparation and Filing of Brief by Party


Submitted by the Board of Governors of the Washington State Bar Association





Purpose: Please see the statement of purpose for suggested New GR 14.1. [Note: The text of this suggested amendment to RAP 10.4 assumes adoption of the pending proposed amendment to RAP 10.4, published in the January 17, 2006 Advance Sheets, 156 Wn.2d at Proposed-76 to 77 (2006), which, inter alia, eliminates paragraph (i).]



RULES OF APPELLATE PROCEDURE (RAP)

RULE 10.4 PREPARATION AND FILING OF BRIEF BY PARTY



(a) - (g) [Unchanged.]

(h) Unpublished Opinions. A party may not cite as an authority an unpublished opinion of the Court of Appeals. Unpublished opinions of the Court of Appeals are those opinions not published in the Washington Appellate Reports. [Reserved. See GR 14.1.]


GR 9 Cover Sheet

Suggested Amendment to Civil Rule (CR) 10

concerning Form of Pleadings and Other Papers


Submitted by the Board of Governors of the Washington State Bar Association





Purpose: The suggested addition of new paragraph (f) is intended to alert litigants to the prohibition on the inclusion in court documents of specified personal identifiers. The prohibition, enacted in 2004, is contained in GR 31(e). Under GR 31 (e)(2), the responsibility for redacting personal identifiers rests with counsel and the parties, and the rule subjects a party to the possibility of paying expenses if a motion for a redaction order is needed. A cross-reference to GR 31(e) will assist litigants in complying with this requirement.

The suggested addition of new paragraph (g) is a component of a new suggested protocol for citation of unpublished opinions. Please see the statement of purpose for suggested New GR 14.1 in this regard. Paragraph (g) will serve to alert litigants about the rules pertaining to citation of unpublished opinions and assist them in complying with that rule. The recommendation to adopt this portion of the suggested amendment is contingent on the adoption of suggested New GR 14.1.



SUPERIOR COURT CIVIL RULES (CR)

CR 10. FORM OF PLEADINGS AND OTHER PAPERS



(a) - (e) [Unchanged.]

(f) Personal Identifiers Prohibited. [Reserved. See GR 31(e).]

(g) Unpublished Opinions. [Reserved. See GR 14.1.]


GR 9 Cover Sheet

Suggested Amendment to Civil Rule (CR) 45

concerning Subpoena


Submitted by the Washington State Bar Association





Purpose: The suggested amendments to CR 45 are primarily intended to conform the rule, to the extent practicable, to Rule 45 of the Federal Rules of Civil Procedure. Additional changes are designed to improve its organization and usefulness. As a whole, this suggested revision will comprehensively consolidate and clarify the rule regarding subpoenas in civil actions, modernize its requirements to reflect current practice in the State of Washington, and eliminate archaisms and anachronisms.

An important substantive change relates to the content of and manner in which a party issues a subpoena duces tecum. Currently, Washington law under CR 45 differs from federal practice in that CR 45 does not clearly recognize the so-called document-only subpoena, i.e., a subpoena that requires the recipient to produce documents or records but that is not joined with an obligation on the part of the recipient to appear and testify. Since 1991, the federal rule has expressly permitted issuance of a subpoena for production and inspection of documents and tangible things independent of any command for a person's attendance at a deposition. Although some practitioners in Washington dispense with the formality of scheduling a "records deposition," CR 45 does not clearly authorize such a procedure. See 15A Washington Practice Series: Washington Handbook on Civil Procedure 49.12 (2006 ed.) ("the federal language is not found in Washington's version of the rule, and the legal authority for this procedure is less than obvious"). Typically, when a records deposition is noted, the actual deposition is avoided when the recipient voluntary agrees to deliver all the requested records and the requesting party's lawyer agrees to cancel the scheduled deposition.

The more streamlined federal procedure, incorporated into paragraphs (a)(1)(C), (a)(3), and (c)(2)(A) of the suggested rule, is designed to codify this practice. This is a well-established federal practice and its proposed adoption in Washington is uncontroversial. The change will serve the interests of both litigants and subpoena recipients and aid in securing the just, speedy, and inexpensive determination of actions.

A related provision, found in paragraph (b)(2) of the suggested rule, requires that a copy of a document-only subpoena be served on all parties five days prior to service of the subpoena on the designated recipient. This requirement is designed to allow parties sufficient time to assert any privileges or objections prior to the recipient complying with the subpoena by delivery of documents to the issuing party. Although Fed. R. Civ. P. 45 (b)(1) similarly requires that "[p]rior notice of any commanded production of documents ... be served on each party," the federal rule does not specify a five-day notice period.

Additionally, the second sentence of paragraph (a)(3) is intended to foreclose the dubious practice of attempting to use a subpoena to compel production of documents from a party without complying with the time requirements of CR 34 governing requests for production directed to a party. Similarly, CR 30 (b)(5) (addressing deposition notices accompanied by CR 34 requests) applies the procedures specified in rule 34, including the prescribed time limits, to depositions of parties.

A second significant change is the addition of express provisions designed for the protection of persons subject to subpoenas. These provisions, contained in paragraph (c) of the suggested rule, are in substantial part identical to those of Fed. R. Civ. P. 45(c). None of these procedures or remedies is inconsistent with existing Washington practice. The actual language of suggested paragraph (c) is included in the form subpoena incorporated into the rule in paragraph (h).

The suggested amendments to CR 45 also incorporate a new paragraph (d), which imposes duties on the recipients of subpoenas. Under subsection (d)(1), a person responding to a subpoena requiring production of documents must produce them as they are maintained in the usual course of business or, alternatively, organize and label them to correspond to categories in the subpoena. Subsection (d)(2) imposes an affirmative obligation to expressly claim privilege if documents are withheld from production and to describe such documents with sufficient particularity to allow the requesting party to contest the claim. The provisions in paragraph (d) correspond to the requirements imposed on a party in responding to a request for production under CR 34. Suggested CR 45(d) is identical to Fed. R. Civ. P. 45(d).

Remaining distinctions between the federal rule and the suggested revision to CR 45 are chiefly attributable to the existence of Washington statutes that continue to govern subpoena procedure to some extent. See RCW ch. 2.40 & ch. 5.56. These statutes govern witness fees, mileage, and other allowances, and impose requirements on the issuance of trial subpoenas that do not apply to issuance of deposition or document subpoenas. These statutes account for variances from the federal rule throughout the suggested revision, as well as for the inclusion of paragraphs (e) and (f), which have no counterpart in the federal rule.

Finally, to guide practitioners in making the transition from the current rule to the revised rule, a suggested form ("Subpoena in a Civil Case") is included and set forth in paragraph (h).

Owing to important distinctions between civil and criminal practice, particularly relating to the issue of providing notice of subpoenas seeking production of documentary and tangible evidence, a simultaneous revision to the Criminal Rules is suggested to separately address the issuance of subpoenas in criminal matters. See the statement of purpose for the suggested amendment to CrR 4.8.


CIVIL RULES (CR)

RULE 45. Subpoena



(a) For Attendance of Witnesses. The subpoena shall be issued as follows:

(1) Form. To require attendance before a court of record or at the trial of an issue therein, such subpoena may be issued in the name of the State of Washington and be under the seal of the court before which the attendance is required or in which the issue is pending: Provided, That such subpoena may be issued with like effect by the attorney of record of the party to the action in whose behalf the witness is required to appear, and the form of such subpoena in each case may be the same as when issued by the court except that it shall only be subscribed by the signature of such attorney.

(2) Issuance for Trial. To require attendance before a court of record or at the trial of an issue of fact, the subpoena may be issued by the clerk in response to a praecipe or by an attorney of record.

(3) Issuance for Deposition. To require attendance out of such court before a judge, justice of the peace, commissioner, referee or other officer authorized to administer oaths or to take testimony in any matter under the laws of this state, it shall be issued by an attorney of record or by such judge, justice of the peace, commissioner, referee or other officer before whom the attendance is required.

(b) For Production of Documentary Evidence. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein; but the court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable and oppressive or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.

(c) Service. A subpoena may be served by any suitable person over 18 years of age, by exhibiting and reading it to the witness, or by giving him a copy thereof, or by leaving such copy at the place of his abode. When service is made by any other person than an officer authorized to serve process, proof of service shall be made by affidavit.

(d) Subpoena for Taking Depositions; Place of Examination.

(1) Authorization. Proof of service of a notice to take a deposition as provided in rules 30(b) and 31(a) constitutes a sufficient authorization for the issuance by the attorney of record or the officer taking the deposition of subpoenas for the persons named or described therein. The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, or tangible things which constitute or contain matters within the scope of the examination permitted by rule 26(b), but in that event the subpoena will be subject to the provisions of rule 26(c) and section (b) of this rule.

The person to whom the subpoena is directed may, within 10 days after the service thereof or on or before the time specified in the subpoena for compliance if such time is less than 10 days after service, serve upon the attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials except pursuant to an order of the court from which the subpoena was issued. The party serving the subpoena may, if objection has been made, move upon notice to the deponent for an order at any time before or during the taking of the deposition.

(2) Place of Examination. A resident of the state may be required to attend an examination only in the county wherein he resides or is employed or transacts his business in person, or at such other convenient place as is fixed by an order of the court. A nonresident of the state may be required to attend only in the county wherein he is served with a subpoena, or within 40 miles from the place of service or at such other convenient place as is fixed by an order of the court.

(3) Foreign Depositions for Local Actions. When the place of examination is in another state, territory, or country, the party desiring to take the deposition may secure the issuance of a subpoena or equivalent process in accordance with the laws of such state, territory or country to require the deponent to attend the examination.

(4) Local Depositions for Foreign Actions. When any officer or person is authorized to take depositions in this state by the law of another state, territory or country, with or without a commission, a subpoena to require attendance before such officer or person may be issued by any judge or justice of the peace of this state for attendance at any places within his jurisdiction.

(e) Subpoena for Hearing or Trial. [Reserved. See RCW 5.56.010.]

(f) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued.

(g) When Excused. A witness subpoenaed to attend in a civil case is dismissed and excused from further attendance as soon as he has given his testimony in chief and has been cross-examined thereon, unless either party moves in open court that the witness remain in attendance and the court so orders; and witness fees will not be allowed any witness after the day on which his testimony is given, except when the witness has in open court been required to remain in further attendance, and when so required the clerk shall note that fact in the minutes.

(a) Form; Issuance.

(1) Every subpoena shall:

(A) state the name of the court from which it is issued;

(B) state the title of the action, the name of the court in which it is pending, and its case number;

(C) command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified; and

(D) set forth the text of subsections (c) and (d) of this rule.

(2) A subpoena for attendance at a deposition shall state the method for recording the testimony.

(3) A command to a person to produce evidence or to permit inspection may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately. A party may be compelled to produce evidence at a deposition or permit inspection only in accordance with rule 34.

(4) A subpoena may be issued by the court in which the action is pending under the seal of that court or by the clerk in response to a praecipe. An attorney of record of a party or other person authorized by statute may issue and sign a subpoena, subject to RCW 5.56.010.

(b) Service.

(1) A subpoena may be served by any suitable person over 18 years of age by giving the person named therein a copy thereof, or by leaving a copy at the place of such person's abode. When service is made by any person other than an officer authorized to serve process, proof of service shall be made by affidavit.

(2) A subpoena commanding production of documents and things, or inspection of premises, without a command to appear for deposition, hearing or trial, shall be served on each party in the manner prescribed by rule 5(b). Such service shall be made no fewer than five days prior to service of the subpoena on the person named therein, unless the parties otherwise agree or the court otherwise orders for good cause shown. A motion for such an order may be made ex parte.

(c) Protection of Persons Subject to Subpoenas.

(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney's fee.

(2)(A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.

(B) Subject to subsection (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce and all other parties, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.

(3)(A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it:

(i) fails to allow reasonable time for compliance;

(ii) fails to comply with RCW 5.56.010 or subsection (e)(2) of this rule;

(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies; or

(iv) subjects a person to undue burden, provided that the court may condition denial of the motion upon a requirement that the subpoenaing party advance the reasonable cost of producing the books, papers, documents, or tangible things.

(B) If a subpoena

(i) requires disclosure of a trade secret or other confidential research, development, or commercial information, or

(ii) requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.

(d) Duties in Responding to Subpoena.

(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.

(2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.

(e) Subpoena for Taking Deposition, Producing Documents, or Permitting Inspection.

(1) Witness Fees and Mileage. [Reserved. See RCW 2.40.020.]

(2) Place of Examination. A resident of the state may be required to attend an examination, produce documents, or permit inspection only in the county where the person resides or is employed or transacts business in person, or at such other convenient place as is fixed by an order of the court. A nonresident of the state may be required to attend an examination, produce documents, or permit inspection only in the county where the person is served with a subpoena, or within 40 miles from the place of service, or at such other convenient place as is fixed by an order of the court.

(3) Foreign Proceedings for Local Actions. When the place of examination, production, or inspection is in another state, territory, or country, the party desiring to take the deposition, obtain production, or conduct inspection may secure the issuance of a subpoena or equivalent process in accordance with the laws of such state, territory, or country.

(4) Local Depositions for Foreign Actions. When any officer or person is authorized to take depositions in this state by the law of another state, territory, or country, with or without a commission, a subpoena to require attendance before such officer or person may be issued by any court of this state for attendance at any place within its jurisdiction.

(f) Subpoena For Hearing or Trial.

(1) When Witnesses Must Attend - Fees and Allowances. [Reserved. See RCW 5.56.010.]

(2) When Excused. A witness subpoenaed to attend in a civil case is dismissed and excused from further attendance as soon as the witness has given testimony in chief and has been cross-examined thereon, unless either party moves in open court that the witness remain in attendance and the court so orders. Witness fees will not be allowed any witness after the day on which the witness' testimony is given, except when the witness has in open court been required to remain in further attendance, and when so required the clerk shall note that fact.

(g) Contempt.

Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. An adequate cause for failure to obey exists when a subpoena purports to require a non-party to attend a deposition, produce documents, or permit inspection at a place not within the limits provided by subsection (e)(2).

(h) Form. A subpoena should be substantially in the form below.


Issued by the

SUPERIOR COURT FOR THE STATE OF WASHINGTON

COUNTY
SUBPOENA IN A CIVIL CASE
v. CAUSE NUMBER:
TO:
&lhlsqbul; YOU ARE COMMANDED to appear in the Superior Court of the State of Washington at the place, date, and time specified below to testify in the above case.
PLACE OF TESTIMONY COURTROOM
DATE AND TIME
&lhlsqbul; YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case.
Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. CR 30 (b)(6).
PLACE OF DEPOSITION DATE AND TIME
&lhlsqbul; YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or tangible things at the place, date, and time specified below (list documents or objects):
PLACE DATE AND TIME
&lhlsqbul; YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below.
PREMISES DATE AND TIME
ISSUING OFFICER SIGNATURE AND TITLE (INDICATE IF ATTORNEY FOR PLAINTIFF OR DEFENDANT DATE
ISSUING OFFICER'S NAME, ADDRESS AND PHONE NUMBER
PROOF OF SERVICE
DATE PLACE
SERVED
SERVED ON (PRINT NAME) MANNER OF SERVICE
SERVED BY (PRINT NAME) TITLE
DECLARATION OF SERVER
I declare under penalty of perjury under the laws of the State of Washington that the foregoing information contained in the Proof of Service is true and correct.
Executed on
DATE/PLACE SIGNATURE OF SERVER
ADDRESS OF SERVER
CR 45, Sections (c) & (d):
(c) Protection of Persons Subject to Subpoenas. (iii) requires disclosure of privileged or other protected matter and no exception or waiver applies; or
(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney's fee. (iv) subjects a person to undue burden, provided that, the court may condition denial of the motion upon a requirement that the subpoenaing party advance the reasonable cost of producing the books, papers, documents, or tangible things.

(B) If a subpoena

(2)(A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of

production or inspection unless commanded to appear for deposition, hearing or trial.

(i) requires disclosure of a trade secret or other confidential research, development, or commercial information, or
(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce and all other parties, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded. (ii) requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.
(3)(A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it: (d) Duties in Responding to Subpoena.
(i) fails to allow reasonable time for compliance; (1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.
(ii) fails to comply with RCW 5.56.010 or subsection (e)(2) of this rule; (2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.

GR 9 Cover Sheet

Suggested Amendment to Civil Rule (CR) 53.4

concerning Procedures for Mandatory Mediation of Health Care Claims


Submitted by the Board of Governors of the Washington State Bar Association





Purpose: The suggested addition of new subsection (f)(9) is intended to comply with the legislative requirement that the Supreme Court adopt court rules implementing mandatory mediation of health care claims. See RCW 7.70.100. CR 53.4, adopted effective March 11, 1997, was enacted to implement this legislation. In the 2006 session, as part of the Medical Malpractice, Patient Safety, and Health Care Liability Reform Act, the legislature amended the statute to require that the implementing court rule include "procedures for the parties to certify to the court the manner of mediation used by the parties...." 2006 Wash. Sess. Laws ch. 8, 314 (effective June 7, 2006, to be codified at RCW 7.70.100(7)).

The language of the new subsection recognizes that, pursuant to CR 53.4(d), "the mediator may determine that the claim is not appropriate for mediation." A 10-day deadline is appropriate because CR 53.4(c) allows a mediation to take place as late as 30 days before trial; hence, the superior court should receive prompt notice of the result of the mediation as far in advance of the trial as is reasonably possible.



SUPERIOR COURT CIVIL RULES (CR)

CR 53.4. PROCEDURES FOR MANDATORY MEDIATION OF HEALTH CARE CLAIMS



(a) - (e) [Unchanged.]

(f) Mediation Procedure. Promptly upon the designation of a mediator, the plaintiff shall arrange a conference call among the mediator and counsel for each party to discuss the procedural aspects of the mediation. Except to the extent the mediator directs otherwise, the following procedures shall apply:

(1) - (8) [Unchanged.]

(9) Certification of Mediation. Not more than 10 days after the mediation concludes or the mediator determines that the claim is not appropriate for mediation, the parties shall certify in writing to the court the manner of mediation, if any, and compliance with the provisions of this rule.

(g) [Unchanged.]


GR 9 Cover Sheet

Suggested Amendment to Civil Rule (CR) 54

concerning Judgment and Costs


Submitted by the Board of Governors of the Washington State Bar Association





Purpose: These suggested amendments are based in part on a recommendation of the judges and clerks of the Court of Appeals. By imposing a ten-day deadline on the filing of motions for attorneys' fees, costs, and the like, the amendment to CR 54(d) is intended to prevent parties from raising trial-level attorney fee issues very late in the appellate process, sometimes after one or all appellate briefs have been submitted.

Currently, the Civil Rules contain no deadline by which a party must file a motion for an award of fees in the trial court. Yet RAP 2.4(g) and 7.2(i) allow an appeal of an award of attorney fees (and/or costs) to automatically join an appeal on the merits of the case anytime after the appellate court has accepted review. This can create delay at the appellate level when an aggrieved party seeks to obtain appellate review of a subsequently entered attorney fee award.

The primary purpose of the proposed amendments is to require a prevailing party to move for attorneys' fees (and any other costs not provided by the statute) within 10 days of the entry of judgment -- the same deadline imposed for other post-judgment motions. This is done by adding a new section (d)(2) to CR 54.

A secondary purpose of the proposed amendment is to better harmonize the language of the applicable Civil Rules with each other and with the relevant statutes (in particular, RCW 4.84.010, .030, and .090). Language added to new subsection (d)(1) of CR 54 and the amendment to CR 78(e) are designed to expressly include both "costs" and "disbursements" and to clarify that the disbursement "affidavit" can be part of the "cost bill."



SUPERIOR COURT CIVIL RULES (CR)

RULE 54. JUDGMENT AND COSTS



(a) - (c) [Unchanged.]

(d) Costs, Disbursements, Attorneys' Fees, and Expenses.

(1) Costs and Disbursements. Costs and disbursements shall be fixed and allowed as provided in RCW 4.84 or by any other applicable statute. If the party to whom costs are awarded does not file a cost bill or an affidavit detailing disbursements within 10 days after the entry of the judgment, the clerk shall tax costs and disbursements pursuant to CR 78(e).

(2) Attorneys' Fees and Expenses. Claims for attorneys' fees and expenses, other than costs and disbursements, shall be made by motion unless the substantive law governing the action provides for the recovery of such fees and expenses as an element of damages to be proved at trial. Unless otherwise provided by statute or order of the court, the motion must be filed no later than 10 days after entry of judgment.

(e) - (f) [Unchanged.]


GR 9 Cover Sheet

Suggested Amendment to Civil Rule (CR) 78

concerning Clerks


Submitted by the Board of Governors of the Washington State Bar Association





Purpose: Please see statement of purpose for suggested amendment to CR 54.



SUPERIOR COURT CIVIL RULES (CR)

CR 78. CLERKS



(a) - (d) [Unchanged.]

(e) Entry of Judgments and Costs. The clerk shall enter judgment or decree pursuant to the provisions of rule 58 and the same shall then be entered for the sum found due or the relief awarded, with costs and disbursements, if any, to be taxed. Entry of judgment shall not be delayed for the taxing of costs. If no cost bill is filed by the party to whom costs are awarded within 10 days after the entry of the judgment or decree, the clerk shall proceed to tax the following costs and disbursements, namely:

(1) The statutory attorney fee;

(2) The clerk's fee; and

(3) The sheriff's fee; and.

(4) Other disbursements, the amount whereof plainly appears on the papers in the case, and shall enter the sum thereof in the judgment entry and execution docket. [PARAGRAPH BREAK]

If a cost bill is filed, he the clerk shall enter as the amount to be recovered the amount claimed in such cost bill, and no motion to retax costs shall be considered unless the same be filed within 6 days after the filing of the-cost bill.

For purposes of this subsection (e), "cost bill" also includes an affidavit detailing disbursements.

(f) [Unchanged.]


GR 9 Cover Sheet

Suggested Amendment to Superior Court Criminal Rule (CrR) 4.4

concerning Severance of Offenses and Defendants


Submitted by the Board of Governors of the Washington State Bar Association





Purpose: Failure of a trial court to exclude an incriminating statement of a nontestifying codefendant may violate a criminal defendant's constitutional right to confront adverse witnesses. See Bruton v. United States, 391 U.S. 123 (1968). To address this issue, CrR 4.4 (c)(1) provides that a defendant's motion to sever under these circumstances will be granted unless:

(i) the prosecuting attorney elects not to offer the statement in the case in chief;

(ii) deletion of all references to the moving defendant will eliminate any prejudice to him from the admission of the statement.

There is neither an "and" nor an "or" between subsections (i) and (ii) of this rule, apparently a drafting or typographical error existing since its inception. (By contrast, paragraph (c)(2) of the rule, which is similarly structured, contains two subsections (i) and (ii), with the term "or" appearing between them.)

It has been assumed that the options presented in subsections (c)(1)(i) and (c)(1)(ii) of CrR 4.4 are disjunctive, i.e, that if the defendant moves for severance, the prosecutor may elect to either (1) abandon the statement as evidence in the state's case, or (2) admit the statement only after deleting all references to the moving defendant. See Royce A. Ferguson, 12 Washington Practice Series: Criminal Practice and Procedure 1712 (3d ed. 2004) (motion will be granted "unless either the prosecuting attorney elects not to offer the statement in the case in chief or deletion of all references to the moving defendant will eliminate any prejudice to him from the admission of the statement").

Nevertheless, the rule in its present form has generated confusion and controversy. In State v. Medina, 112 Wn. App. 40, 48 P.3d 1005 (2002), for example, the Court of Appeals used the term "and" when describing the CrR 4.4 (c)(1) alternatives. The court ultimately held, however, that CrR 4.4 (c)(1) severance was not required because subsection (ii) alone had been satisfied by the prosecution's redaction of the statement at issue. But the Medina court's mistaken description of the rule was cited in a recent appeal in which the defendant expressly argued that the term "and" rather than "or" should be implied in paragraph (c)(1). See State v. Vincent, 131 Wn. App. 147, 120 P.3d 120 (2005) (resolving case without reaching the CrR 4.4 (c)(1) issue).

The amendment inserting "or" between the CrR 4.4 (c)(1)(i) and (ii) will clarify the intent of the rule and prevent further disputes arising from an arguable ambiguity.



SUPERIOR COURT CRIMINAL RULES (CrR)

RULE 4.4. SEVERENCE OF OFFENSES AND DEFENDANTS



(a) - (b) [Unchanged.]

(c) Severance of Defendants.

(1) A defendant's motion for severance on the ground that an out-of-court statement of a codefendant referring to him is inadmissible against him shall be granted unless:

(i) the prosecuting attorney elects not to offer the statement in the case in chief; or

(ii) deletion of all references to the moving defendant will eliminate any prejudice to him from the admission of the statement.

(2) - (4) [Unchanged.]

(d) - (e) [Unchanged.]


GR 9 Cover Sheet

Suggested Amendment to Superior Court Criminal Rule (CrR) 4.7

concerning Discovery


Submitted by the Board of Governors of the Washington State Bar Association





Purpose: This suggested amendment is designed to correct an apparent typographical error in subsection (a)(1)(vi) of CrR 4.7. The subsection requires the prosecuting attorney, as part of the general discovery obligation in a criminal case, to disclose "any record or prior criminal convictions known to the prosecuting attorney of the defendant and of person whom the prosecuting attorney intends to call as witnesses at the hearing or trial." (Emphasis added). All indications are that the "or" should be an "of." The corresponding rule for the Courts of Limited Jurisdiction, CrRLJ 4.7 (a)(1)(v), requires the prosecuting authority to disclose "any record of prior criminal convictions known to the prosecuting authority of the defendant and of persons whom the prosecuting authority intends to call as witnesses at the hearing or trial." (Emphasis added). In practice, lawyers treat the "or" as an "of." See, e.g., Royce A. Ferguson, 12 Washington Practice Series: Criminal Practice and Procedure 1306 (3d ed. 2004) ("The prosecuting attorney is required to disclose to the defendant the following material and information within his possession and control no later than the omnibus hearing:... any record of prior criminal convictions known to the prosecuting attorney of the defendant and of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial."). The error has existed since the Criminal Rules were adopted in 1973.

In crafting what would become the Superior Court Criminal Rules, the Washington Judicial Council Criminal Rules Task Force drafted the provision to read: "Any record of prior criminal convictions known to the prosecuting attorney of the defendant and of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial." Criminal Rules Task Force to the Washington Judicial Council, Washington Proposed Rules of Criminal Procedure Rule 4.7 (a)(1)(vi), at 70 (1971) (emphasis added). The provision was derived from a corresponding ABA discovery standard, which required disclosure of "any record of prior criminal convictions of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial." Id. at 79 (quoting American Bar Association, Standards Relating to Discovery and Procedure Before Trial 2.1 (a)(vi) (Approved Draft 1970)) (emphasis added). When Washington's Criminal Rules were adopted and published, however, the "of" had become an "or." See Criminal Rules for Superior Court, 82 Wn.2d 1114, 1143 (1973). This appears to have been a typographical error.

The intent of this provision is to do no more than require the prosecution to disclose records "of prior criminal convictions." It is applied and interpreted in that fashion. There appears to be no argument or authority to the contrary. Therefore, it is recommended that subsection (a)(1)(vi) of CrR 4.7 be amended to change the "or" to an "of".



SUPERIOR COURT CRIMINAL RULES (CrR)

RULE 4.7. DISCOVERY



(a) Prosecutor's Obligations.

(1) Except as otherwise provided by protective orders or as to matters not subject to disclosure, the prosecuting attorney shall disclose to the defendant the following material and information within the prosecuting attorney's possession or control no later than the omnibus hearing:

(i) - (v) [Unchanged.]

(vi) any record or of prior criminal convictions known to the prosecuting attorney of the defendant and of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial.

(2) - (4) [Unchanged.]

(b) - (h) [Unchanged.]


GR 9 Cover Sheet

Suggested Amendment to Superior Court Criminal Rule (CrR) 4.8

concerning Subpoenas


Submitted by the Board of Governors of the Washington State Bar Association





Purpose: The Washington State Bar Association has suggested substantial amendments to CR 45 regarding subpoenas in civil actions. For this reason, existing CrR 4.8 (which currently provides "[s]ubpoenas shall be issued in the same manner as in civil actions") requires contemporaneous amendment. In addition, prior to the decision of the Court of Appeals in State v. White, 126 Wn. App. 131, 107 P.3d 753 (2005), the practice for issuing subpoenas in criminal actions (particularly the issue of whether to give notice of issuance of a subpoena duces tecum) was not consistent throughout the state. The White case, which required compliance with CR 45 notice obligations for service of all subpoenas, underscored problems in engrafting civil procedures onto criminal cases.

The new suggested rule explicitly recognizes two types of subpoenas: (1) those directing a person to attend and give testimony ("a subpoena for testimony") and (2) those requiring production of documentary evidence or tangible things ("a subpoena for production"). A subpoena for testimony compels a person to attend trial, a hearing, or a deposition. Provisions regarding form (subsection (a)(1)), service (subsection (a)(3)), and "when excused" (subsection (a)(4)) are consistent with existing practice. Under subsection (a)(1), a subpoena may be issued by the court or by an attorney of record. Under subsection (a)(3), service on a person directed to testify is accomplished by personal service, abode service, or mail (provided that a waiver form is filed in case of service by mail). Proof of service or a waiver of service can be evidenced by affidavit or declaration. The waiver provision is intended as an alternative means of service that will facilitate cost-effective service. Under subsection (a)(4), a person is excused from further testimony after his or her examination, unless otherwise ordered by the court. This subsection is identical to existing CR 45(g) and suggested CR 45 (f)(2).

The notice provision in subsection (a)(2) is new and represents a compromise between the positions articulated by prosecutors and defense lawyers. In general, prosecutors favor a rule that requires each party to provide notice to the adverse party whenever a subpoena is issued (as required by CR 45 and the White decision), and defense lawyers prefer not to provide such notice. Unlike civil practice, where discovery obligations of all parties generally correspond, procedural and ethical requirements in criminal cases are such that disclosure obligations differ for the prosecution and the defense. In particular, the obligation of a defense lawyer not to act in such a way as to incriminate his or her client creates unique problems, underscoring the need for a carefully crafted subpoena rule. Thus, under subsection (a)(2) of the suggested amendment, notice to all parties is not required for issuance of a subpoena for testimony, unless it is accompanied by a subpoena for production (in which case notice is required pursuant to subsection (b)(2)(iii)), or unless notice is required elsewhere in the Criminal Rules. Notice of the time and place for taking a court-ordered deposition in a criminal case is separately required by CrR 4.6(b).

The new suggested rule sets forth specific requirements that apply only to a subpoena for production, i.e., a subpoena requiring that the recipient produce books, papers, documents, or tangible things. (Unlike the proposed amendment to CR 45, CrR 4.8(b) does not include a provision to permit inspection of premises because it is not necessary or appropriate to do so in criminal matters; if unique circumstances require inspection of premises, the issue can be addressed by the court, as it is at present, under CrR 4.7.) The form of the subpoena for production is similar to a subpoena for testimony, except that it must include the text of subsection (b)(4) advising the recipient of the availability of a motion to quash in the enumerated circumstances.

Just as in subsection (a)(2), notice provisions in subsection (b)(2) represent a compromise between prosecutors and defense attorneys. This subsection provides that advance notice of a subpoena for production is required whenever a subpoena seeks documentary evidence or tangible things belonging or pertaining to a defendant, an alleged victim or complaining witness, or a member of an alleged victim's family or household. This advance notice must occur at least 5 days before service of the subpoena for production upon the subpoena recipient, although the parties may agree to, or the court may order, a shorter time. Subsection (a)(2)(ii) provides an exception for a defense attorney seeking records pertaining solely to the defendant. Thus, by subpoena a defense attorney can acquire school, medical, telephone, and other records relating to his or her client without notice to the prosecution and without risking disclosure of potentially inculpatory information. A second and independent means of foregoing the notice requirement is by ex parte motion. Under compelling circumstances, a court may order that notice of the subpoena for production (issued either by the prosecution or the defense) is not required. This would allow, for example, a prosecutor to obtain records relating to a victim without disclosure to a defendant or defense counsel.

Service requirements for a subpoena for production depend upon whether the subpoena also directs the person to attend and give testimony. A subpoena that both requires attendance and production must be served on the witness pursuant to subsection (a)(3). Service of a subpoena for production only is accomplished pursuant to CR 5(b).

The suggested amendments to CR 45 incorporate provisions designed for the protection of persons subject to subpoenas. These provisions are in substantial part identical to those of Fed. R. Civ. P. 45(c). The text in subsection (b)(4) of suggested CrR 4.8 synthesizes these provisions for application in criminal cases and provides a mechanism to seek court protection upon timely motion.

Section (c) is identical to paragraph (f) of existing CR 45 (which will become paragraph (g) in the suggested amendment to CR 45).



SUPERIOR COURT CRIMINAL RULES (CrR)

RULE 4.8. SUBPOENAS



Subpoenas shall be issued in the same manner as in civil actions.

(a) For Attendance of Witnesses. A subpoena directing a person to attend and give testimony ("a subpoena for testimony") shall be issued as follows:

(1) Form. A subpoena for testimony shall state the title of the action, the case number, the name of the court in which the action is pending, and, if different, the name of the court from which the subpoena for testimony is issued. A subpoena for testimony may be issued by the court in which the action is pending or before which attendance is required under the seal of that court or by the clerk in response to a praecipe. A subpoena for testimony may be issued with like effect by the attorney of record of the party to the action in whose behalf the witness is required to appear.

(2) Notice. Notice to each party of the issuance of a subpoena for testimony is not required unless (i) such subpoena also commands the person to whom it is directed to produce any books, papers, documents, or tangible things, or (ii) notice is required elsewhere in these rules. If a subpoena for testimony also commands a person to produce any books, papers, documents, or tangible things, then notice of such subpoena shall be given in the manner described in subsection (b)(2)(iii) of this rule.

(3) Service -- How Made. A subpoena for testimony may be served by any suitable person over 18 years of age, by giving the witness a copy thereof, or by leaving a copy at the witness's dwelling house or usual place of abode. When service is made by any person other than an officer authorized to serve process, proof of service shall be made by affidavit or declaration. A subpoena for testimony may also be served by first-class mail, postage prepaid, together with a waiver of personal service and instructions for returning such waiver to the attorney of record of the party to the action in whose behalf the witness is required to appear. Service by mail shall be deemed complete upon the filing of the returned waiver of personal service, signed in affidavit or declaration form.

(4) When Excused. A witness subpoenaed to attend trial is excused from further attendance as soon as the witness has given testimony in chief and has been cross-examined thereon, unless either party moves in open court that the witness remain in attendance and the court so orders. Witness fees will not be allowed any witness after the day on which the witness's testimony is given, except when the witness has in open court been required to remain in further attendance, and when so required the clerk shall note that fact in the minutes.

(b) For Production of Documentary Evidence or Tangible Things. A subpoena commanding a person to produce and permit inspection and copying of designated books, papers, documents, or tangible things in the possession, custody, or control of that person ("a subpoena for production") shall be issued as follows:

(1) Form. A subpoena for production shall be in the same form and issued in the same manner as described in subsection (a)(1) of this rule. A person on whom a subpoena for production is served need not appear at the place of production or inspection unless directed to appear and give testimony. A subpoena for production shall set forth the text of subsection (b)(4) of this rule.

(2) Notice. Advance notice of a subpoena for production shall be provided as follows:

(i) When Required. Notice of a subpoena for production shall be provided whenever a party seeks documentary evidence or tangible things belonging or pertaining to a defendant, an alleged victim or complaining witness, or a member of an alleged victim's family or household.

(ii) Exceptions. Notice of a subpoena for production is not required when an attorney representing a defendant seeks documentary evidence or tangible things belonging solely to or pertaining solely to such defendant. In all other instances, upon a showing of compelling circumstances by ex parte motion of a party, the court may order that notice of a particular subpoena for production is not required. Such court order, along with a copy of the subpoena for which notice is excused, shall be filed under seal pursuant to GR 15.

(iii) Time and Manner. No fewer than five days prior to service of a subpoena for production on the person commanded therein to produce documentary evidence or tangible things, notice of such subpoena shall be provided to each party by serving a copy thereof in the manner prescribed by CR 5(b). The parties may agree to shorten, or the court may shorten upon a showing of good cause by a party, the time between notice and service of a particular subpoena.

(3) Service -- How Made. If a subpoena for production also directs a person to attend and give testimony, service of the subpoena for production on the person to whom it is directed shall be governed by subsection (a)(3) of this rule. A subpoena for production not directing a person to attend and give testimony may be served in the manner prescribed by CR 5(b).

(4) Protection of Persons Subject to Subpoena for Production. On timely motion, the court may quash or modify a subpoena for production if it (i) fails to allow reasonable time for compliance, (ii) requires disclosure of privileged or other protected matter and no exception or waiver applies, (iii) is unreasonable, oppressive, or unduly burdensome, or (iv) exceeds the scope of discovery otherwise permitted under the criminal rules. The court may condition denial of a motion to quash or modify upon the advancement by the party in whose behalf the subpoena for production is issued of the reasonable cost of producing the books, papers, documents, or tangible things.

(c) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued.


GR 9 Cover Sheet

Suggested Amendment to Superior Court Criminal Rule (CrR) 7.8

concerning Relief from Judgment or Order


Submitted by the Board of Governors of the Washington State Bar Association





(A) Name of Proponent: Washington State Bar Association.

(B) Spokesperson: David D. Swartling, Chair, WSBA Court Rules and Procedures Committee.

(C) Purpose: This suggested amendment is based on a recommendation originally submitted by the Washington Association of Prosecuting Attorneys (WAPA). The suggested amendment to CrR 7.8 provides that a motion to vacate a criminal judgment will be transferred to the Court of Appeals for consideration as a personal restraint petition rather than decided by the superior court, except in enumerated circumstances.

A CrR 7.8 motion to vacate is a form of collateral attack on a criminal judgment. Most such motions are not subject to a definite deadline but can be made "within a reasonable time." In many cases, these motions are filed by pro se defendants after the direct appeal and personal restraint processes have been exhausted. Because such motions are classified as collateral attacks, they are subject to a number of procedural restrictions imposed by statute, including the restriction that a collateral attack may not be filed more than one year after judgment (unless an exception applies). See RCW 10.73.090(2); see also RCW 10.73.100; RCW 10.73.140. In many cases, such a pro se motion is clearly procedurally barred and should be denied, but if the superior court denies the motion, the defendant is entitled to appointed counsel because such an order is appealable under RAP 2.2. An abuse of discretion standard applies on appeal; hence, in the case of procedurally barred motions, there is little appointed counsel can do. Substantial time and effort can be consumed in these abortive appellate proceedings.

Currently, CrR 7.8 permits transfer of a motion to vacate to the Court of Appeals "if such transfer would serve the ends of justice." The WSBA Court Rules and Procedures Committee was advised that the transfer procedure is routinely and successfully invoked in King County Superior Court. The suggested rule will require the superior court to transfer all motions directly to the Court of Appeals for initial disposition as personal restrain petitions. Excepted are motions not barred by RCW 10.73.090 if either (1) the defendant makes a substantial showing that he or she is entitled to relief or (2) resolution of the motion requires a factual hearing. These situations are appropriately addressed by the superior court. In all other cases, once transferred, the more flexible procedures for initial consideration of a personal restraint petition will apply. See RAP 16.11.

(D) Hearing: A public hearing is not recommended.

(E) Expedited Consideration: Expedited consideration is not requested.



SUPERIOR COURT CRIMINAL RULES (CrR)

RULE 7.8. RELIEF FROM JUDGMENT OR ORDER



(a) - (b) [Unchanged.]

(c) Procedure on Vacation of Judgment.

(1) Motion. Application shall be made by motion stating the grounds upon which relief is asked, and supported by affidavits setting forth a concise statement of the facts or errors upon which the motion is based.

(2) Initial Consideration Transfer to Court of Appeals. The court may deny the motion without a hearing if the facts alleged in the affidavits do not establish grounds for relief. The court may shall transfer a motion filed by a defendant to the Court of Appeals for consideration as a personal restraint petition if such transfer would serve the ends of justice unless the court determines that the motion is not barred by RCW 10.73.090 and either (i) the defendant has made a substantial showing that he or she is entitled to relief or (ii) resolution of the motion will require a factual hearing.

(3) Order to Show Cause. Otherwise, the court If the court does not transfer the motion to the Court of Appeals, it shall enter an order fixing a time and place for hearing and directing the adverse party to appear and show cause why the relief asked for should not be granted.


GR 9 Cover Sheet

Suggested Amendment to Rule for Appeal of Decisions of Courts of Limited Jurisdiction (RALJ) 7.3

concerning Format of Briefs


Submitted by the Board of Governors of the Washington State Bar Association





Purpose: Please see the statement of purpose for suggested New GR 14.1.



RULES FOR APPEAL OF DECISIONS OF COURTS OF LIMITED JURISDICTION (RALJ)

RULE 7.3. FORMAT OF BRIEFS



(a) - (b) [Unchanged.]

(c) Unpublished Opinions. A party may not cite as authority an unpublished opinion of a Washington appellate court, nor of any other state or federal court that is not published. A party may not cite as authority a decision of a superior court, a court of limited jurisdiction, or a decision of a commissioner of the Supreme Court or Court of Appeals. [Reserved. See GR 14.1.]


GR 9 Cover Sheet

Suggested Amendment to Civil Rule for Courts of Limited Jurisdiction (CRLJ) 10

concerning Form of Pleadings


Submitted by the Board of Governors of the Washington State Bar Association





Purpose: Please see the statement of purpose for the suggested amendments to CR 10.



RULES FOR APPEAL OF DECISIONS OF COURTS OF LIMITED JURISDICTION (CRLJ)

RULE 10. FORM OF PLEADINGS



(a) - (c) [Unchanged.]

(d) Personal Identifiers Prohibited. [Reserved. See GR 31(e).]

(e) Unpublished Opinions. [Reserved. See GR 14.1.]


GR 9 Cover Sheet

Suggested Amendment to Criminal Rule for Courts of Limited Jurisdiction (CrRLJ) 4.4

concerning Severance of Offenses and Defendants


Submitted by the Board of Governors of the Washington State Bar Association





Purpose: Please see the statement of purpose for the suggested amendment to CrR 4.4.



CRIMINAL RULES FOR COURTS OF LIMITED JURISDICTION (CrRLJ)

RULE 4.4. SEVERENCE OF OFFENSES AND DEFENDANTS



(a) - (b) [Unchanged.]

(c) Severance of Defendants.

(1) A defendant's motion for severance on the ground that an out-of-court statement of a codefendant referring to him or her is inadmissible against him or her shall be granted unless:

(i) the prosecuting attorney elects not to offer the statement in the case in chief; or

(ii) deletion of all references to the moving defendant will eliminate any prejudice to him or her from the admission of the statement.

(2) - (3) [Unchanged.]

(d) - (e) [Unchanged.]

Reviser's note: The spelling errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office