1E9Ct5D

WASHINGTONTamara K. NelsonSylvia J. HallMERRICK, HOFSTEDT & LINDSEY, P.S.3101 Western Avenue, Suite 200Seattle, Washington 98121Tel.: (206) 682-0610www.mhlseattle.comtnelson@mhlseattle.com1. Does your state recognize an exemption from discovery (or a privilege) forpre-suit investigation materials? Is there a key to preserving thisexemption/privilege (i.e. involvement of counsel)?Washington Superior Court Civil Rule 26(b)(4) provides a limited exemption for pre-suitinvestigation materials under the work-product doctrine. Washington Civil Rule 26(b)does not distinguish between the work product of attorneys and non-attorneys. Thedetermining factor for whether the materials are exempt from discovery is whether theyare created “in anticipation of litigation” as opposed to “the ordinary course of business”.If specific litigation can be reasonably anticipated from the outset of an incident, and thedominant purpose of the investigation is to prepare to defend the potential claim, theinvestigation materials will fall under the work product doctrine. Heidebrink v. Moriwaki,104 Wn.2d 392, 706 P.2d 212 (1985). If the investigation materials are created in theordinary course of business and not in anticipation of litigation, the materials will not beexempt from discovery. Even if created in anticipation of litigation, materials may bediscovered if the requesting party shows a substantial need of the materials in thepreparation of his case and that he is unable without undue hardship to obtain thesubstantial equivalent of the materials by other means. In ordering discovery of suchmaterials when the required showing has been made, the court shall protect againstdisclosure of the mental impressions, conclusions, opinions, or legal theories of anyattorney or other representative of a party concerning the litigation.2. What is your state’s rule with regard to the discoverability of written orrecorded statements taken during investigation of an incident?Washington Superior Court Civil Rule 26(b) governs the discoverability of written andrecorded statements taken during an investigation. A party or witness is entitled to acopy of his or her own statement without any requisite showing of good cause. Awritten or recorded statement of another person is only discoverable if the party seekingthe discovery has substantial need of the materials in the preparation of his case andthat he is unable without undue hardship to obtain the substantial equivalent of thematerials by other means. Courts will generally only require the disclosure of thestatement if the statement is made by a witness or a party whose testimony is relevantand the declarant is unavailable.