IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO ELC 2.7-CONFLICTS REVIEW OFFICER, CR 26-GENERAL PROVISIONS GOVERNING DISCOVERY AND CR 45-SUBPOENA

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ORDER NO. 25700-A-944

     The Washington State Bar Association having recommended the adoption of the proposed amendments to ELC 2.7-Conflicts Review Officer, CR 26-General Provisions Governing Discovery and CR 45-Subpoena, and the Court having determined that the proposed amendments will aid in the prompt and orderly administration of justice and further determined that an emergency exists which necessitates an early adoption;

     Now, therefore, it is hereby

     ORDERED:

     (a) That the amendments as shown below hereto are adopted.

     (b) That pursuant to the emergency provisions of GR 9 (j)(1), the amendments will be published expeditiously and become effective upon publication.

     DATED at Olympia, Washington this 7th day of December, 2009.

	Alexander, C. J.
C. Johnson, J.	Owens, J.
Madsen, J.	Fairhurst, J.
Sanders, J.	J.M. Johnson, J.
Chambers, J.	Stephens, J.

     (1) Limitation of Authority. A Conflicts Review Officer's duties are limited to performing the initial review of grievances covered by this Rule. After obtaining the respondent lawyer's response to the grievance, the A Conflicts Review Officer may obtain the respondent lawyer's response to the grievance, if he/she feels it necessary to do so, in his/her sole discretion. A Conflicts Review Officer may dismiss the grievance, defer the investigation, or assign the grievance to special disciplinary counsel for further investigation.

     (2) Independence. The Conflicts Review Officers acts independently of disciplinary counsel and the Association.

     (b) Appointment and Qualifications.

     (1) The Supreme Court, on the recommendation of the Board of Governors, appoints an active member shall appoint three active members of the Association to a three-year renewable term as Conflicts Review Officers. Each Conflicts Review Officer is appointed for a three-year term on a staggered basis, and may be recommended for reappointment at the discretion of the Board of Governors. Applications shall be solicited from those eligible to serve, and submitted to the Board of Governors, in such manner as the Association deems most appropriate under the policies and procedures then in effect for recruitment and appointment of volunteers in the discipline system.

     (2) When no Conflicts Review Officer is available to handle a matter due to conflict of interest or other good cause, the Supreme Court, on the recommendation of the Board of Governors, shall appoint a Conflicts Review Officer pro tempore for the matter.

     (3) To be eligible for appointment as Conflicts Review Officer or Conflicts Review Officer pro tempore, a lawyer must have prior experience either as a Disciplinary Board member, or as disciplinary counsel, or special disciplinary counsel. The Conflicts Review Officers and Conflicts Review Officers pro tempore may have no other active role in the discipline system during the term of appointment. When the Conflicts Review Officer is not available to handle a matter due to conflict of interest or other good cause, on the recommendation of the Board of Governors, the Supreme Court will appoint a Conflicts Review Officer pro tempore for the matter.

     (4) The Association shall assign matters to the Conflicts Review Officers in such a manner as to balance their caseloads insofar as it is practicable to do so.

     (c) Access to Disciplinary Information. The Conflicts Review Officers and Conflicts Review Officers pro tempore have has access to any otherwise confidential disciplinary information necessary to perform the duties required by these rules. Conflicts Review Officers and Conflicts Review Officers pro tempore shall return original files to the Association promptly upon completion of the duties required by these rules and shall not retain copies.

     (d) Compensation and Expenses. The Association reimburses a Conflicts Review Officers and Conflicts Review Officers pro tempore for all necessary and reasonable expenses, and compensates a Conflicts Review Officer may provide compensation at a level established by the Board of Governors.

     (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.]

     (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
v.			SUBPOENA IN A CIVIL CASE 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
			METHOD OF RECORDING
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.

     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.

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