WSR 09-01-028

RULES OF COURT

STATE SUPREME COURT


[ December 5, 2008 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO CR 26-GENERAL PROVISIONS GOVERNING DISCOVERY; CR 45-SUBPOENA; CRLJ 45-SUBPOENA AND MAR 4.2-DISCOVERY )

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ORDER

NO. 25700-A-909

The Washington State Bar Association having recommended the adoption of the proposed amendments to CR 26-General Provisions Governing Discovery; CR 45-Subpoena; CRLJ 45-Subpeona [Subpoena] and MAR 4.2-Discovery, and the Court having approved the proposed amendments for publication;

Now, therefore, it is hereby

ORDERED:

(a) That pursuant to the provisions of GR 9(g), the proposed amendment as attached hereto are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's web sites in January 2009.

(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, 2009. 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 [5th] day of December 2008.
For the Court
Gerry L. Alexander
CHIEF JUSTICE
GR 9 COVER SHEET

Suggested Amendment

SUPERIOR COURT CIVIL RULES (CR)

CR 26 - General Provisions Governing Discovery


(Clarifying procedures for assertion of privilege or of work-product after production in discovery)


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


A. Purpose: Federal Rule of Civil Procedure 26 (b)(5)(B) establishes what is often referred to as a "claw back" procedure. Through it, a party that has inadvertently disclosed privileged or trial-preparation materials through discovery may alert the receiving party of that event. After being notified, the receiving party must take steps to return, destroy, or sequester the subject material, and may not use or disclose it until the disclosing party's claim of protection is resolved. The federal rule is procedural only; it does not purport to alter the legal standards applicable to privileges or their waiver.

The suggested amendment to Washington's CR 26 would add a new subsection (b)(6) that is functionally identical to the federal "claw back" rule. A concurrent proposal to amend CR 45 would, as in its federal counterpart, restate this rule in the context of documents produced in response to a subpoena.



SUGGESTED AMENDMENT

CIVIL RULES (CR)

RULE 26. General Provisions Regarding Discovery



(a) [Unchanged.]

(b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

(1) - (5) [Unchanged.]

(6) Claims of Privilege or Protection as Trial-Preparation Materials for Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; and must take reasonable steps to retrieve the information if the party disclosed it before being notified. Either party may promptly present the information in camera to the court for a determination of the claim. The producing party must preserve the information until the claim is resolved.

(67) Discovery From Treating Health Care Providers. The party seeking discovery from a treating health care provider shall pay a reasonable fee for the reasonable time spent in responding to the discovery. If no agreement for the amount of the fee is reached in advance, absent an order to the contrary under section (c), the discovery shall occur and the health care provider or any party may later seek an order setting the amount of the fee to be paid by the party who sought the discovery. This subsection shall not apply to the provision of records under RCW 70.02 or any similar statute, nor to discovery authorized under any rules for criminal matters.

(78) Treaties or Conventions. If the methods of discovery provided by applicable treaty or convention are inadequate or inequitable and additional discovery is not prohibited by the treaty or convention, a party may employ the discovery methods described in these rules to supplement the discovery method provided by such treaty or convention.

(c) - (j) [Unchanged.]


GR 9 COVER SHEET

Suggested Amendment

SUPERIOR COURT CIVIL RULES (CR)

Rule 45 - Subpoena


(Clarifying "abode service" and procedures for assertion of privilege or work-product protection after production in response to a subpoena)


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


A. Purpose: A newly redrafted version of CR 45 took effect September 1, 2007. These suggested amendments would refine that version in two ways.

First, this suggested amendment would make the language regarding service in CR 45 (b)(1) conform more closely to CR 5 (b)(1). Under the prior and current versions of CR 45, a subpoena may simply be left at "the place of such person's abode." This amendment would replace that with language from CR 5 (b)(1), requiring the document to at least be left at the person's "dwelling house or usual place of abode with some person of suitable age and discretion then residing therein."

Second, this suggested amendment would add a new subsection CR 45 (d)(2)(B) that would incorporate the proposed "claw back" rule of CR 26 (b)(6) (which applies to discovery generally) expressly into the procedures for subpoenas. This would essentially track Federal Rule of Civil Procedure 45 (d)(2)(B). For more information, please see the statement of purpose for the concurrent suggested amendment of CR 26.


SUGGESTED AMENDMENT

CIVIL RULES (CR)

RULE 45. SUBPOENA



(a) [Unchanged.]

(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 such person's dwelling house or usual place of such person's abode with some person of suitable age and discretion then residing therein. When service is made by any person other than an officer authorized to serve process, proof of service shall be made by affidavit.

(2) [Unchanged.]

(c) [Unchanged.]

(d) Duties in Responding to Subpoena.

(1) [Unchanged.]

(2)(A) 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.

(B) If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information in camera to the court for a determination of the claim. The person responding to the subpoena must preserve the information until the claim is resolved.

(e) - (g) [Unchanged.]

(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:
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

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

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
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) [Unchanged.]

(d) (1) [Unchanged.]

(2)(A) 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.

(B) If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information in camera to the court for a determination of the claim. The person responding to the subpoena must preserve the information until the claim is resolved.


GR 9 COVER SHEET

Suggested Amendment

CIVIL RULES FOR COURTS OF LIMITED JURISDICTION (CRLJ)

Rule 45 - Subpoena


(Revising subpoena rule to conform to revisions to CR 45)


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


A. Purpose: A newly redrafted version of CR 45 took effect September 1, 2007. The corresponding CRLJ 45 was not amended at that time and remains nearly identical to the former version of CR 45. This suggested amendment would conform CRLJ 45 to CR 45 (including to additional changes suggested by a concurrent proposal to amend CR 45).

By way of background, the recent redraft of CR 45 conformed that rule, to the extent practicable, to Federal Rule of Civil Procedure 45 and improved CR 45's organization and usefulness. For a detailed discussion of the substantive changes introduced by the redraft of CR 45, please see the statement of purpose for the amendment that took effect September 1, 2007.

For more information on the two additional changes now being suggested for CR 45, please see the statement of purpose for the concurrent suggested proposal to amend CR 45.

The suggested redraft of CRLJ 45 would once again put it on par with its counterpart in the Civil Rules. The language of the suggested amendment is nearly identical to the language of CR 45 (assuming that CR 45 is amended pursuant to the concurrent suggested proposal). There would be three minor differences. First, CRLJ 45 (a)(3) would end with "...in accordance with rule 26" because, unlike the Civil Rules, there is no rule 34 in the Rules for Courts of Limited Jurisdiction. Second, CRLJ 45 (a)(4) would refer to the court issuing a subpoena "in the name of the State of Washington" rather than, as in CR 45, "under the seal of that court." This is because of uncertainty over whether all courts of limited jurisdictions have seals. Finally, the form subpoena attached to CRLJ has been altered for use in courts of limited jurisdiction.


RULE 45. SUBPOENA


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

(1) Form. To require attendance before a court of limited jurisdiction or at the trial of an issue therein, such subpoena may be issued in the name of the State of Washington by 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 on 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 limited jurisdiction or at the trial of an issue of fact, the subpoena may be issued by the clerk in response by 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) Proof of service of a notice to take a deposition as provided in CR 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, but in that event the subpoena will be subject to the provisions of 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 26.

(4) A subpoena may be issued by the court in which the action is pending in the name of the State of Washington 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 such person's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. 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)(A) 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.

(B) If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information in camera to the court for a determination of the claim. The person responding to the subpoena must preserve the information until the claim is resolved.

(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.

[NOTE: Although not underlined, the following form constitutes a rule amendment.]


Issued by the
[NAME OF COURT]
SUBPOENA IN A CIVIL CASE
v.
CAUSE NUMBER:
TO:
YOU ARE COMMANDED to appear in the above captioned court at the place, date, and time specified below to testify in the above case.
PLACE OF TESTIMONY COURTROOM

DATE AND TIME

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. CRLJ 26.
PLACE OF DEPOSITION DATE AND TIME

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
YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below.
PREMISES DATE AND TIME
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

CRLJ 45, Sections (c) & (d):

(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)(A) 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.

(B) If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information in camera to the court for a determination of the claim. The person responding to the subpoena must preserve the information until the claim is resolved.


GR 9 COVER SHEET

Suggested Amendment

SUPERIOR COURT MANDATORY ARBITRATION RULES

Rule 4.2 - Discovery


(Clarifying that CR 26(i) conferences are not required before an arbitrator may hear a motion for additional discovery)


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



A. Purpose: The proposed amendment clarifies that parties are not required to comply with CR 26(i) before an arbitrator may hear a motion for additional discovery. This is in response to reports of parties to arbitrations opposing MAR 4.2 discovery motions because of the moving party's alleged failure to comply with the conference requirements of CR 26(i).

CR 26(i) states: "The court will not entertain any motion or objection with respect to [CR] 26 through 37 unless counsel have conferred with respect to the motion or objection." Thus, by its terms, CR 26(i) does not apply to arbitrations. This makes sense because CR 26(i) is a judicial workload reduction rule. Arbitrators -- who oversee a process that is designed to be quicker and less complicated than Superior Court litigation--do not need the same buffer. Furthermore, MAR 4.2 motions are not related to a party's failure to comply with or object to discovery; rather, they are seeking to conduct discovery beyond that specified in MAR 4.2.



SUGGESTED AMENDMENT

MANDATORY ARBITRATION RULES (MAR)

Rule 4.2 - Discovery



After the assignment of a case to the arbitrator, a party may demand a specification of damages under RCW 4.28.360, may request from the arbitrator an examination under CR 35, may request admissions from a party under CR 36, and may take the deposition of another party, unless the arbitrator orders otherwise. No additional discovery shall be allowed, except as the parties may stipulate or as the arbitrator may order. The arbitrator will allow discovery only when reasonably necessary. The conference requirements of CR 26(i) shall not apply to motions to the arbitrator to allow additional discovery under this rule.

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 error in the above material occurred in the copy filed by the State Supreme Court and appears in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office