                                                                        FILED
                                                                    JANUARY 21, 2020
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

SHELBY BARCHASCH,                )
                                 )                      No. 36136-5-III
                    Appellant,   )                      (Consol. with No. 36293-1-III)
                                 )
      v.                         )
                                 )
GONZAGA UNIVERSITY, a Washington )                      UNPUBLISHED OPINION
nonprofit corporation and SANDRA )
SIMPSON,                         )
                                 )
                    Respondents. )

       KORSMO, J. — Shelby Barchasch appeals from a protective order and a contempt

sanction. We reluctantly reverse in part.

                                            FACTS

       Appellant Barchasch attended the Gonzaga University School of Law from 2013

to 2016. While there, he worked in the Gonzaga University Legal Clinic (Clinic) for

three semesters. The Clinic provides services in six different areas of law for particular

underserved populations in need of legal assistance.1

       For reasons not discussed in our record, appellant’s application to take the state

bar examination was rejected. Mr. Barchasch thereafter sued Gonzaga and one of the



       1
           See generally https://www.gonzaga.edu/school-of-law/clinic-centers/law-clinic.
No. 36136-5-III (Consol. with No. 36293-1-III)
Barchasch v. Gonzaga University & Simpson


associate deans, raising defamation, breach of contract, and intentional infliction of

emotional distress claims. Gonzaga did not file an answer to the complaint and thus did

not assert any counterclaims. In the course of discovery, Mr. Barchasch revealed that he

possessed client files from his time at the Clinic. Gonzaga requested that the files be

returned; appellant declined to do so. The parties also disagreed about other discovery

matters.

       Gonzaga then sought assistance from the court by filing for a protective order

pursuant to CR 26(c). The court ordered, inter alia, that Barchasch comply with court

ordered limitations on use of some discovery materials obtained from the Clinic and that

he return all client files to the Clinic. The court later denied reconsideration of the ruling,

leading Mr. Barchasch to move to dismiss his action. The court dismissed the case

without prejudice on June 14, 2018, but retained jurisdiction over the protective order,

which remained in effect. Mr. Barchasch appealed to this court the next day.

       On July 6, 2018, Barchasch revealed to Gonzaga that he still had Clinic files in his

possession and threatened to reveal them to the public. The court then found Mr.

Barchasch in contempt on August 16, 2018, and ordered that he serve 48 hours in jail.2

The ruling stated that the contempt could be purged by Mr. Barchasch’s agreement not to

disclose the files. He appealed the contempt order on August 21, 2018.



       2
           Our record does not show if the jail sentence was served or stayed.

                                               2
No. 36136-5-III (Consol. with No. 36293-1-III)
Barchasch v. Gonzaga University & Simpson


       This court consolidated the two cases. A panel considered the appeals without

hearing oral argument.

                                        ANALYSIS

       The appeal presents questions about the validity of the protective order and

ensuing contempt finding. We first address the protective order before briefly

commenting on the contempt finding.

       CR 26

       Mr. Barchasch argues that the discovery rules do not authorize the protective order

in this case since it did not involve discovery materials, while the Clinic argues that the

language of the rule authorized the recovery of its purloined files. We agree with

appellant that CR 26 does not empower a court to act on materials obtained outside of the

discovery context.3

       CR 26 is entitled “General Provisions Governing Discovery.” The rule lists

provisions concerning the types of discovery authorized by the civil rules and provides

information concerning the scope of discovery. CR 26(a), (b). It then provides for

protective orders in CR 26:



       3
         To the extent that the Clinic was denied a copy of the files in discovery, it was
entitled to seek a court order directing compliance with its lawful request. However, a
motion to compel production is not the same as a protective order limiting a recipient’s
use of discovery materials. Compare CR 26(c) with CR 37. Other aspects of the
protective order are not before us and remain valid.

                                              3
No. 36136-5-III (Consol. with No. 36293-1-III)
Barchasch v. Gonzaga University & Simpson


              (c) Protective Orders. Upon motion by a party or by the person
       from whom discovery is sought, and for good cause shown, the court in
       which the action is pending . . . may make any order which justice requires
       to protect a party or person from annoyance, embarrassment, oppression, or
       undue burden or expense, including one or more of the following . . . (7) that
       a trade secret or other confidential research, development, or commercial
       information not be disclosed or be disclosed only in a designated way.

Additional provisions of the rule provide for the timing of discovery and describe other

procedures regulating the discovery process. CR 26(d)-(j).

       Typically we review protective order rulings for abuse of discretion. T.S. v. Boy

Scouts of Am., 157 Wn.2d 416, 423, 138 P.3d 1053 (2006). Discretion is abused when it

is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v.

Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Whether a specific law applies to a

particular fact pattern is a question of law reviewed de novo. Tapper v. Emp’t Sec. Dep’t,

122 Wn.2d 397, 403, 858 P.2d 494 (1993).

       CR 26 provides trial courts great authority to regulate discovery. This is

consistent with the scope of our court’s authority to issue rules. The Washington

Supreme Court has been empowered to enact rules governing court procedures, but it

lacks authority to create substantive rights. E.g., State v. Templeton, 148 Wn.2d 193,

212-213, 59 P.3d 632 (2002); Emwright v. King County, 96 Wn.2d 538, 543, 637 P.2d

656 (1981).




                                             4
No. 36136-5-III (Consol. with No. 36293-1-III)
Barchasch v. Gonzaga University & Simpson


       Accordingly, our Civil Rules regulate the procedures relating to the development

and resolution of civil actions filed in the superior courts of this state. CR 1.4 The

express terms of rule 26 revolve around the concept of discovery. Although CR 26(c)

provides expansive authority for the trial court to act, it does so only within the limited

realm of regulating discovery.5 It is not a cause of action unto itself.

       The rule is inapplicable here because Mr. Barchasch wrongly retained the files

long before any litigation was initiated; he did not obtain them during discovery in this

case. The Clinic had, and still has, other options to obtain relief. Actions for replevin as

well as for injunctive or declaratory relief all come to mind.6

       We reverse the protective order to the extent that it addresses Clinic client files or

other records obtained outside of the discovery process and remand for the court to make

such revisions as are necessary. All other provisions remain valid.




       4
         “These rules govern the procedure in the superior court in all suits of a civil
nature whether cognizable as cases at law or in equity with the exceptions stated in rule
81. They shall be construed and administered to secure the just, speedy, and inexpensive
determination of every action.”
       5
         We reach this conclusion independent of Seattle Times Co. v. Rhinehart, 467
U.S. 20, 104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984), a case relied on by Mr. Barchasch.
There the court characterized CR 26(c) in the same manner we do, but the Rhinehart
court was not tasked with interpreting state law. Instead, the issue in that case involved
the First Amendment and use of CR 26(c) as a prior restraint on publication of
information gathered during discovery.
       6
         A referral to law enforcement for potential theft prosecution might also be in
order.

                                              5
No. 36136-5-III (Consol. with No. 36293-1-III)
Barchasch v. Gonzaga University & Simpson


       Contempt Ruling

       Mr. Barchasch argues next that the trial court wrongly applied a criminal contempt

sanction without providing the appropriate criminal law safeguards. We disagree with

his characterization, but need not discuss the matter in any detail in light of our resolution

of the previous issue. For the benefit of the appellant, we will, however, comment on the

contempt power as it relates to the next steps of this case.

       Contempt is the intentional disobedience of a valid court order. RCW 7.21.010.

A finding of contempt is within the discretion of the trial court and will not be reversed

absent an abuse of that discretion. Schuster v. Schuster, 90 Wn.2d 626, 630, 585 P.2d

130 (1978). Discretion is abused when it is exercised on untenable grounds or for

untenable reasons. Junker, 79 Wn.2d at 26.

       It has long been understood that the subject of a court order must comply with the

order until relieved of the obligation to do so. Levinson v. Vanderveer, 169 Wash. 254,

256, 13 P.2d 448 (1932) (“A judgment entered by a court of general jurisdiction is

presumed to be valid until set aside on appeal.”); Accord, State v. Sheets, 48 Wn.2d 65,

67, 290 P.2d 974 (1955) (“A final judgment or order in a civil proceeding . . . is valid and

binding until regularly reversed or set aside.”). This opinion, unless reversed by the

Washington Supreme Court, will become final, and thus effective between the parties,

upon the issuance of our mandate. RAP 12.5. Thus, the parties must comply with all

terms of the protective order until that date.

                                                 6
No. 36136-5-III (Consol. with No. 36293-1-III)
Barchasch v. Gonzaga University & Simpson


      Reversed in part and remanded for further proceedings consistent with this

opm10n.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:



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