                                                          2016DEC 19 AH II: 3




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON




 MICHAEL MOCKOVAK,                                     No. 74459-3-1


                      Appellant,                       DIVISION ONE

               v.



 KING COUNTY, a political subdivision                  UNPUBLISHED
 of Washington State; and the KING
 COUNTY PROSECUTING                                    FILED: December 19. 2016
ATTORNEY'S OFFICE, a local public
 agency,


                      Respondents.



       Cox, J. — Michael Mockovak appeals the trial court's summary judgment

order and the order denying his motion to compel discovery. There are no

genuine issues of material fact regarding the first order. And King County and

the King County Prosecutor are entitled to judgment as a matter of law. As for

the second order, the trial court did not abuse its discretion in denying discovery.

We affirm.
No. 74459-3-1/2


        In 2010, a jury found Michael Mockovak guilty of soliciting and attempting

to murder his business partner among other charges.1 This court affirmed the

judgment and sentence on appeal2 and later denied his personal restraint

petition.3

        Mockovak's convictions arose out of a joint federal-state investigation

conducted by the Puget Sound Safe Streets Violent Crimes Task Force (the

"Task Force"). This body includes both federal and state law enforcement

officers specially appointed to federal positions. Leonard Carver was a Detective

with the Seattle Police Department (SPD), appointed as a Federal Bureau of

Investigation (FBI) Task Force Officer and Special Deputy U.S. Marshal. In this

capacity, he had investigatory and arrest authority for violations of federal law.4

        The task force employed a confidential informant in its investigation

named Daniel Kultin, a Russian emigre and Mockovak's employee. Kultin

contacted the FBI after Mockovak told him "maybe in a joke way," but not as a

"funny joke" that he wanted his business partner killed.5 In the following months,


        1 State v. Mockovak, No. 66924-9-I, slip op. at *1 (Wash. Ct. App. May 20,
2013) (unpublished), http://www.courts.wa.gov/opinions/pdf/669249.pdf.

        2 Id, at *2.

        3 In re Mockovak, No. 69390-5-I, slip op. at *15 (Wash. Ct. App. June 6,
2016) (published), http://www.courts.wa.gov/opinions/pdf/693905.pdf.

        4 As discussed, the parties dispute whether Leonard Carver was only an
SPD Detective or a federal Officer as well. We will refer to him only by last
name.



        5 In re Mockovak, No. 69390-5-I, slip op. at *2.
No. 74459-3-1/3


Kultin entertained such entreaties, which grew increasingly serious. The two

arranged for Kultin to hire someone who was supposed to be a hitman in the

Russian mafia to perform the murder. Soon after they made this deal, law

enforcement arrested Mockovak.

      The King County Prosecuting Attorney (KCPA) and the United States

Department of Justice (DOJ) agreed that the State should prosecute Mockovak

under state law. In preparing for trial, the KCPA and United States Attorney's

Office (USAO) consulted regularly about the process to obtain and release

federal investigation documents. This complex process for release led to

occasional tension in their communications.

       While incarcerated following his convictions, Mockovak brought this public

records case against King County and the KCPA. He sought all documents in

the KCPA's possession referring to Kultin's immigration status.

       The County and the KCPA soon began providing records, many heavily

redacted to protect work product, along with an exemption log sheet. The

County and the KCPA also refused to disclose Kultin's National Crime

Information Center (NCIC) Report, arguing they were barred from doing so by

federal statute.

       In June 2015, the County and KCPA moved for summary judgment.

Along with the motion, the KCPA filed sealed and unredacted copies of 130

documents for in camera review. Mockovak argues that these were improperly

redacted.
No. 74459-3-1/4


       Mockovak moved for partial summary judgment. The effect of his motion

was to reduce the number of contested document redactions to 81. He

organized the challenged documents into three categories, which we describe in

more detail later in this opinion.

       The trial court granted summary judgment to the County and KCPA,

denying Mockovak's partial summary judgment motion. This order was entered

on November 23, 2015.

       In August 2015, Mockovak sought to depose Carver. The USAO

responded and explained that Carver could not testify or provide documents

without the approval of the U.S. Attorney because he was a federal employee.

Mockovak moved for an order compelling Carver's deposition. The United States

appeared and opposed the motion, arguing that the court lacked jurisdiction to

compel a federal employee to testify. The trial court denied the motion to compel

in an order, entered on November 25, 2015.

       Mockovak appeals by a notice of appeal filed on December 22, 2015.

                                     TIMELINESS

       As a preliminary matter, the County and the KCPA argue that this appeal

is untimely. We disagree.

       RAP 2.2(a) generally bars a party from appealing rulings in a case until

after entry of a final judgment. The question is how that applies in this case.

       The parties agree that Mockovak filed his notice of appeal in this case

after the court entered orders granting the County's and the KCPA's motion for

summary judgment, denying Mockovak's and denying his discovery motion. The
No. 74459-3-1/5


trial court had yet to enter an order to finalize an offerof judgment disposing of

claims already settled between the parties. But that fact does not preclude our

review.

       When a party appeals a trial court order before the trial court has fully

disposed of the case, "substance controls over form and [we] look[] to the content

of a document rather than its title."6

       Our decision in Rhodes v. D & D Enterprises, Inc. is illustrative.7 In that

case, certain vendors brought a declaratory action, asking the court to construe a

provision in a contract for the sale of real property.8 The trial court issued a

Decree construing the provision and terminating the contract.9 It also issued a

"Final Judgment" ordering conveyance of the land.10 In doing so, it adjudicated

all issues save identification of the specific land to be conveyed.11 We held that,

under such circumstance, the Decree and Final Judgment were final even if the

land remained unidentified.12 Although we concluded that the appeal from the




       6 Rhodes v. D & D Enterprises, Inc., 16 Wn. App. 175, 177, 554 P.2d 390
(1976).
          7 16 Wn. App. 175, 554 P.2d 390 (1976).

          8]dat176.

          9 Id at 176-77.


          10 jd, at 177.

          11 jd at 178.

          12 Id.
No. 74459-3-1/6


Decree was defective for other reasons, we found the documents otherwise

appealable.13

       Here, Mockovak filed his notice of appeal on December 22, 2015,

following entry of the November 23, 2015 summary judgment order that disposed

of all substantive issues in dispute. Likewise, the notice of appeal also

designates the order denying the motion to compel, entered on November 25,

2015. Both orders were entered within 30 days prior to filing of the notice. All

that remained for the trial court was to finalize the offer of judgment concerning

matters already settled earlier in the litigation. In looking to the substance of the

orders appealed, we conclude they are analogous to the decree and final

judgment in Rhodes. Thus, we hold they are final and appealable.

                    DISCOVERY OF TASK FORCE MEMBER

       The United States argues that the trial court correctly denied Mockovak's

discovery motion because it lacked authority to compel Carver to testify. We

hold that the trial court properly exercised its discretion in doing so.

       Discovery decisions are within the trial court's sound discretion.14 Atrial

court abuses its discretion when it makes decisions based on untenable grounds

or for untenable reasons.15




       13 Jd

       14 State v. Hutchinson, 135 Wn.2d 863, 882, 959 P.2d 1061 (1998).

        15 State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007) (internal
citation omitted).
No. 74459-3-1/7


                                    Touhy Regulations

         The United States argues first that 5 U.S.C. § 301 provides it with

authority to oppose discovery of Carver, a member of its joint task force. We

agree.

         5 U.S.C. § 301 authorizes each federal department head to "prescribe

regulations for the government of his department, the conduct of its employees,

the distribution and performance of its business, and the custody, use, and

preservation of its records." The DOJ has prescribed such regulations, included

within 28 C.F.R. §16.

         28 C.F.R. § 16.22(a) provides:

         [i]n any federal or state case or matter in which the United States is
         not a party, no employee ... of the Department of Justice shall, in
         response to a demand, produce any material contained in the files
         of the Department, or disclose any information relating to or based
         upon material contained in the files of the Department, or disclose
         any information or produce any material acquired as part of the
         performance of that person's official duties.
         Whenever a DOJ employee receives such a demand, he must

immediately notify the local U.S. Attorney.16 Similarly, the party seeking

discovery may make a request to the U.S. Attorney.17 In both instances, the U.S.

Attorney then decides whether the relevant employee will testify.18




         16 28 C.F.R. § 16.22(b) (2015).

         17 28 C.F.R. § 16.22(c).

         18 28 C.F.R. § 16.22(a); 16.24(b).
No. 74459-3-1/8


       We review de novo the meaning of statutes.19

       In United States ex rel. Touhv v. Raqen, the U.S. Supreme Court upheld

these regulations, explaining that the "necessity[] of centralizing determination as

to whether subpoenas duces tecum will be willingly obeyed or challenged is

obvious."20 The regulations have taken the name of that case and are known as

the Touhv regulations. When these regulations apply to bar federal employees

from testifying, they "operate as a jurisdictional limitation on the [state court's]

authority."21

       Here, the parties dispute whether the regulations actually apply to Carver

and, if so, whether they violate the anti-commandeering principle of the Tenth

Amendment.


       Turning to the first argument, Mockovak argues that Carver was not an

"employee" within the meaning of 5 U.S.C. § 301 or the Touhv regulations. We

disagree.

       For the purposes of Title 5 of the United States Code, an "employee" is a

person appointed to the civil service.22 The DOJ has informed the court that



       19 Dowler v. Clover Park Sch. Dist. No. 400, 172 Wn.2d 471, 482, 258
P.3d 676 (2011).

       20
            340 U.S. 462, 468, 71 S. Ct. 416, 95 L Ed. 417 (1951).

       21 United States v. Threet, No. 09-20523-05, 2011 WL 5865076, *1 (E.D.
Mich. Nov. 22, 2011): see Mavo v. Citv of Scranton, No. 3:CV-10-0935, 2012 WL
6050551, at *2 (M.D. Pa. Dec. 4, 2012); Hickev v. Columbus Consol. Gov't, No.
4:07-CV-096(CDL), 2008 WL 450561, at *3 n.4 (M.D. Ga. Feb. 15, 2008).

        22 5 U.S.C. §2105(a).


                                               8
No. 74459-3-1/9


neither Carver's designation within the FBI nor within the United States Marshal

Service qualify as civil service appointments.23

       But 5 U.S.C. § 301 reaches further. As noted above, it empowers the

DOJ to prescribe more general regulations for departmental administration,

including the "distribution and performance of its business" and the "custody, use,

and preservation of its records, papers, and property." Thus, we conclude that

the DOJ may govern the conduct of those under its supervision who perform its

business. 28 C.F.R. § 16 is a permissible expression of this authority.

       Further, the statutory definition noted above does not control whether

Carver is an employee under the Touhy regulations. Because those regulations

are otherwise proper under the statute, they may define their own terms. The

definition of "employee" for such purposes rests in 28 C.F.R. § 16.21(b). There,

"employees" are "all officers and employees of the United States appointed by, or

subject to the supervision, jurisdiction, or control of the Attorney General of the

United States, including U.S. Attorneys, U.S. Marshals, U.S. Trustees, and

members of the staffs of those officials." As discussed below, Carver is subject

to such "supervision, jurisdiction, or control." And regulation of such persons is

permissible under 5 U.S.C. § 301. The DOJ's use of the word "employee" to

describe such persons does not alter our conclusion.




       23 Letter from Michael Shih, Appellate Staff, Civil Div., U.S. Dep't of
Justice, to Richard D. Johnson, Court Administrator/Clerk, WA State Court of
Appeals - Div. I (Oct. 31, 2016).
No. 74459-3-1/10


      Further, the DOJ's use of the word "employee" tracks the common law.

Mockovak argues that, under the common law, Carver can only be an employee

of the agency that pays his salary. He cites to the Supreme Court's reference to

the American Heritage dictionary definition of an employee as any "person who

works for another in return for financial or other compensation."24 He thus argues

that Carver could only be the employee of the agency paying his salary. This is

inconsistent with the law of agency.

      As the Third Restatement of Agency explains, "the fact that work is

performed gratuitously does not" preclude the formation of an agency

relationship.25 Similarly, the common law allows the employer who pays an

employee's salary to loan him to another employer. The Second Restatement of

Agency explains that a "servant directed or permitted by his master to perform

services for another may become the servant of such other in performing the

services."26 Thus, employment by one entity does not preclude simultaneous

employment by another entity.

      The Supreme Court concluded likewise in N.L.R.B. v. Town & Country

Electric, Inc.27 The issue in that case was whether certain electricians who




      24 N.L.R.B. v. Town & Country Elec, Inc., 516 U.S. 85, 90, 116 S. Ct. 450,
133 L Ed. 2d 371 (1995).

      25 Restatement (Third) of Agency § 7.07(3)(b) (2006).

      26 Restatement (Second) of Agency § 227 (1958).

      27 516 U.S. 85, 94, 116 S. Ct. 450, 133 L Ed. 2d 371 (1995).


                                           10
No. 74459-3-1/11


organized for and were paid by their union could also be employees of the entity

hiring them to do electrical work.28 In holding that they could be, the Court

explained that a "person may be the servant of two masters .. . at one time as

to one act, if the service to one does not involve abandonment of service to the

other."29 The Court concluded that the electricians' compensated organizing

work did not constitute abandonment of their service to the company.30 While

performing the "ordinary tasks during the working day," the electricians were

subject to the company's control, "whether or not the union also pays the worker"

or if the union and company's "interests or control might sometimes differ."31

       Our supreme court has explained that "the chief, and most decisive,

factor" in forming an employment relationship is the "right of control over the work

or thing to be done."32 The Touhv regulations are consistent with this

understanding by stating that one is a federal employee if subject to the

"supervision, jurisdiction, or control of the Attorney General."33




       28 id at 87-88.

       29 id at 94-95.

       30 id at 95.

       31 id

       32 Hubbard v. Dep't of Labor & Indus., 198 Wash. 354, 359, 88 P.2d 423
(1939).

       33 28 C.F.R. § 16.21(b).


                                             11
No. 74459-3-1/12


      Whether the SPD pays or also employs Carver is not determinative. If the

FBI controls his actions while conducting federal investigations, then he is a

federal employee and subject to the Touhv regulations.

      Carver's "full-time official duties [are] devoted to the investigation of

federal crimes for the purpose of federal prosecution." He receives his

assignments from the FBI and "is under the day-to-day supervision and control of

the FBI." As such, he must adhere to "the investigative and administrative

requirements" of the DOJ and FBI. The DOJ and FBI thus control his actions

and render him a federal employee under the Touhv regulations, as interpreted in

light of the common law. Thus, the trial court correctly determined that the Touhv

regulations apply to Carver.

                                 Tenth Amendment

       Turning to Mockovak's second argument, he claims that application of the

Touhv regulations to bar the subpoena directed at Carver violates the Tenth

Amendment. This is incorrect.

       The Tenth Amendment provides: "The powers not delegated to the United

States by the Constitution, nor prohibited by it to the States, are reserved to the

States respectively, or to the people."34 The United States Supreme Court has

explained that while this language does not prevent the federal government from

regulating individual conduct, it bars it from "commandeering" the institutions of




       34 U.S. Const, amend X.


                                             12
No. 74459-3-1/13


state government for the fulfillment of its own purposes.35 This principle protects
the system of "dual sovereignty" contemplated by the United States

Constitution.36 That system, along with the checks and balances within the

federal government, protect the citizen's individual liberty.37

       We review de novo constitutional issues.38

       In Printz v. United States, the Supreme Court considered whether this

principle applied to a statute requiring that state police implement federal law.39
Congress had passed the Brady Handgun Violence Prevention Act, requiring that

state police officers conduct background checks on individuals seeking to buy

firearms.40 One such officer, Sheriff Printz, "objected] to being pressed into

federal service" and argued that such impressment violated the Tenth

Amendment.41 The Court agreed, concluding that it would contravene the




      35 Printz v. United States, 521 U.S. 898, 902, 117 S. Ct. 2365, 138 L Ed.
2d 914 (1997).

       36idat919.

       37 id at 921.

       38 State v. McCuistion, 174 Wn.2d 369, 387, 275 P.3d 1092 (2012).

       39 521 U.S. 898, 902, 117 S. Ct. 2365, 138 L Ed. 2d 914 (1997).

       40 id at 902.

       41 id at 905.


                                              13
No. 74459-3-1/14


constitutional system, allowing the United States to "reduc[e]" state officers to

mere "puppets of a ventriloquist Congress."42

       But, as the United States argues in this case, the Tenth Amendment

provides "merely that the federal government may not conscript nonconsenting

state executive ... officers to enforce federal laws." It does not bar regulation of

consenting state officers.

       Printz supports this distinction. That case identified the "critical point here

-that Congress could [not] impose these responsibilities without the consent of

the States.'*3 In contrast, the Court recognized the legitimacy of previous

statutes which did not "mandate those duties, but merely empowered the [United

States] to enter into contracts with such State . .. officers as maybe

designated tor that purpose by the governor of any State."44 Such consensual

collaborations were unlikely to provoke the "federal-state conflicts]" that offended

the Tenth Amendment.45 Within such collaborative arrangements, state officers

are neither "impressed," "dragooned," nor made congressional puppets.46




       42 id at 928.

       43 id at 910-11.

       44 id. at 916 (internal citation omitted).

       45 id at 919.

       46 ]± at 928-29; see also Lomont v. O'Neill, 285 F.3d 9, 14 (D.C. Cir.
2002) (holding that the Tenth Amendment allows federal regulation of state
officers executing a consensual state-federal program).


                                               14
No. 74459-3-1/15


        Here, Mockovak argues that a longstanding principle holds that "state

officers [a]re not stripped of their state sovereignty just because they work[]

cooperatively with federal agencies." He cites for this proposition the Supreme

Court's decision in Randolph v. Donaldson, but that case does not aid his

argument.47

        In Randolph, a state prison held federal inmates based on two

congressional statutes passed in 1789.48 The first recommended that the states

legislate to allow their jails to rent out space to the United States to house federal

prisoners.49 The Printz court would later point to such a law as a legitimate

example of consensual federal-state cooperation.50 The second statute

authorized the federal Marshals to appoint deputies for whose misfeasance they

would bear responsibility.51 Virginia passed a law allowing the U.S. Marshal to

rent space in its jails for federal prisoners, and the U.S. Marshal for Virginia did

so.52




        47 13 U.S. (9 Cranch) 76, 3 L Ed. 662 (1815).

        48 id at 84-85.




        50 Printz, 521 U.S. at 909.


        51 Randolph, 13 U.S. at 84-85.


        52 id


                                              15
No. 74459-3-1/16


       Afederal prisoner then escaped from a Virginia state jail.53 An

unidentified plaintiff sued the U.S. Marshall in vicarious liability for the state

jailer's negligence.54 Thus, the Court had to determine if the state jailer's

incidental involvement in the jail sharing scheme made him an agent of the U.S.

Marshal.55 The Court held that it did not and that the mere rental of jail cells did

not render the state jailer the Marshal's deputy.56 The United States had not

appointed the state jailer to such a position, and the Marshal had no authority to

command or direct the jailer.57

       Here, in contrast, the FBI and the U.S. Marshal Service appointed Carver

to this task force. Neither Carver nor the state jailer in Randolph merely "agreed

to assist" the United States. Carver acted pursuant to a consensual joint task

force arrangement between the United States, Washington, and the SPD. The

state jailer in Randolph never held any federal position and always remained an

exclusively state employee working pursuant to a federal-state cooperative

arrangement.58 The only commonality between that case and this case is that




       53 id at 84.

       54 id

       55 id

       56 id at 86.

       57 id

       5813 U.S. at 14-15.


                                               16
No. 74459-3-1/17


both involve legitimate consensual cooperation between the United States and a

state body.

       Thus, the trial court correctly denied Mockovak's motion to compel

Carver's deposition. It lacked authority under the Touhv regulations to compel

Carver to testify.

       Mockovak's arguments suggest an unwillingness to accept Carver's status

as an officer within the FBI and U.S. Marshall Service. He interprets the United

States' brief to argue "that whenever a State police officer joins a joint

federal/state task force he becomes a Special Federal Officer and ceases to be

subject to the laws of Washington State." The United States makes no such

claim. Outside DOJ regulations and applicable principles of sovereign immunity,

Carver remains subject to Washington law.

       Mockovak mounts two other arguments on how the application of the

Touhv regulations offends the Tenth Amendment. They are unpersuasive.

       First, he argues that 5 U.S.C. § 301 cannot apply to a state law police

officer in a criminal proceeding because the "federal government does not have

a general police power to make criminal laws." Mockovak's legal argument is

correct.59 But the statute and the Touhv regulations are not directed at criminal

conduct. They serve, rather, to regulate the employment conduct of federal

employees and disclosure of evidence.




       59 Bond v. United States, 134 S. Ct. 2077, 2086, 189 L. Ed. 2d 1 (2014).


                                             17
No. 74459-3-1/18


      Second, Mockovak argues that the U.S. Attorney inappropriately sought to

"overrule the Superior Court's determination that the deponent may have relevant

testimony to give." He argues that "[n]o federal official has the power to usurp

the judicial power of the state courts by making evidentiary rulings that are

binding on state court judges." The Supremacy Clause proves otherwise.

       The United States cannot "commandeer" state legislative or executive

branches. But the Supremacy Clause provides that "the laws of the United

States ... shall be the supreme law of the land; and the judges in every state

shall be bound thereby."60 This provision requires judges to conform to the

requirements of federal law.61

       Discovery to "compel an official of a federal agency to testify contrary to

the agency's duly enacted regulations clearly thwarts the purpose and intended

effect of the federal regulations."62 This "plainly violates both the spirit and the

letter of the Supremacy Clause."63 Thus, the Touhv regulations properly limit the

discovery sought in this case. The court did not abuse its discretion in denying

the motion to compel Carver to testify at a deposition.




       60 U.S. Const, art. 4, cl. 2 (emphasis added).

       61 Testa v. Katt, 330 U.S. 386, 394, 67 S. Ct. 810, 91 L. Ed. 967 (1947).

       62 Boron Oil Co. v. Downie, 873 F.2d 67, 71 (4th Cir. 1989).

       63 id


                                              18
No. 74459-3-1/19


                                  Sovereign Immunity

       The United States also argues that its sovereign immunity precludes the

enforcement of discovery orders directed against federal employees like Carver.

We agree.

       Division Two of this court has explained that a subpoena directed "against

a federal official, acting within the scope of his delegated authority, is an action

against the United States, subject to the governmental privilege of sovereign

immunity."64 Unless the United States waives its immunity, "a state court lacks

jurisdiction to compel a federal employee to testify in a state court action to which

the United States is not a party, concerning information acquired during the

course of his or her official duties."65

       Because Mockovak seeks information from Carver that Carver learned in

the course of his duties as a task force member, federal sovereign immunity

precluded the state court from enforcing the subpoena.

                              PUBLIC RECORDS ACT

       Mockovak next argues that even if the trial court cannot require Carver to

testify, it has authority to compel production of documents that Carver relied upon

in testifying. We disagree.

       The Public Records Act (PRA) defines as records within its purview "any

writing containing information relating to the conduct of government or the


       64 State v. Vance, 184 Wn. App. 902, 916, 339 P.3d 245 (2014), review
denied, 182 Wn.2d 1020 (2015).

       65 id


                                             19
No. 74459-3-1/20


performance of any governmental or proprietary function prepared, owned, used,
or retained by any state or local agency regardless of physical form or

characteristics."66

       We review de novo interpretations of the PRA.67

       In Concerned Ratepayers Association v. Public Utility District No. 1 of

Clark County. Washington, the supreme court explained that a state or local

agency "used" a record otherwise possessed or owned by a different person

when the record is "(1) employed for; (2) applied to; or (3) made instrumental to a

governmental end or purpose."68 Thus, in that case, the designs for an electrical
turbine became a public record when reviewed by state utility employees for

implementation.69

       Here, Mockovak argues that certain task force documents became public

records subject to the PRA when Carver used them. While we agree that such
documents likely qualify as public records under the state act, that alone does

not entitle Mockovak to them.

       The United States argues that even if Carver relied upon these documents

in his earlier investigation and testimony, "nothing in Concerned Ratepayers

suggests that the Public Records Act requires Washington State agencies to


       66 RCW 42.56.010(3).

       67 Nissen v. Pierce County, 183 Wn.2d 863, 872, 357 P.3d 45 (2015).

        68 138 Wn.2d 950, 960, 983 P.2d 635 (1999).

        69 id at 962.


                                            20
No. 74459-3-1/21


acquire and turn over documents created by and belonging to a federal agency in

contravention of that agency's Touhv regulations." We agree.

                                  WORK PRODUCT

       The County and the KCPA argue that the trial court properly granted

summary judgment dismissing Mockovak's challenge to the redaction of the 81

challenged documents as protected work product. We agree.

       The PRA exempts from disclosure "records [that] would not be available to

another party under the rules of pretrial discovery for causes pending in the

superior courts."70 CR 26(b)(4) establishes two tiers of work product protection.

First, an attorney's documented "mental impressions, conclusions, opinions, or

legal theories" are always immune from discovery.71 Second, other documents

"prepared in anticipation of litigation or for trial by or for another party" are not

exempt for disclosure when the party seeking disclosure demonstrates a

substantial need for them and an inability without undue hardship to procure their

equivalent by other means.72

       We review de novo summary judgment orders.73 Summary judgment is

proper "only when there is no genuine issue as to any material fact and the




       70 RCW 42.56.290.


       71 CR 26(b)(4).

       72
            Id.


       73 Neigh. Alliance of Spokane County v. County of Spokane, 172 Wn.2d
702,715,261 P.3d 119 (2011).


                                               21
No. 74459-3-1/22


moving party is entitled to judgment as a matter of law."74 "A genuine issue of

material fact exists if 'reasonable minds could differ on the facts controlling the

outcome of the litigation.'"75 This court considers "the evidence and all

reasonable inferences from the evidence in the light most favorable to the

nonmoving party."76

       Mockovak advances numerous challenges to the trial court's conclusion

on summary judgment that the documents at issue were protected from

disclosure as work product. He argues first that he is entitled to documents

within Appendix A because attorney work product protection was allegedly

overridden by criminal discovery requirements under Brady v. Maryland.77 He

argues second that the KCPA waived the protections of the work product

doctrine to documents within Appendix B. He argues third that the work product

doctrine does not apply to documents within Appendix C because they were

prepared by the USAO and thus not prepared in anticipation of litigation. He

argues lastly that even if the work product doctrine protects these documents, he




      74 Scrivener v.Clark Coll., 181 Wn.2d 439, 444, 334 P.3d 541 (2014); see
also CR 56(c).

      75 Knight v. Dep't of Labor & Indus., 181 Wn. App. 788, 795, 321 P.3d
1275 (guoting Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d
886 (2008)), review denied, 181 Wn.2d 1023 (2014).

      76 Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015).

      77 373 U.S. 83, 83 S. Ct. 1194, 10 L Ed. 2d 215 (1963).


                                             22
No. 74459-3-1/23


has made a sufficient showing to overcome its protection. We disagree with all

of these arguments.

                                    Brady Rights

        Mockovak argues the County and KCPA must disclose unredacted

versions of documents in his Appendix A because he is constitutionally entitled to

these documents under Brady. We disagree.

        The Supreme Court held in Brady that the "suppression by the prosecution

of evidence favorable to an accused . .. violates due process where the

evidence is material either to guilt or to punishment, irrespective of the good faith

or bad faith of the prosecution."78 Such evidence includes evidence that may be

used to impeach a witness's credibility.79

         Federal Circuit Courts of Appeals have concluded that Brady obligations

extend to evidence suggesting an implied or "tacit understanding[s]" between the

government and witnesses to exchange cooperation for some benefit.80 The

government must provide such evidence whether or not the defense requests

it.81




        78 id at 87.

      79 Giolio v. United States, 405 U.S. 150, 153-54, 92 S. Ct. 763, 31 L. Ed.
2d 104 (1972).

     80 Wisehart v. Davis, 408 F.3d 321, 323-24 (7th Cir. 2005); see also
Douglas v. Workman, 560 F.3d 1156, 1186 (10th Cir. 2009).

       81 Kvles v. Whitley, 514 U.S. 419, 433, 115 S. Ct. 1555, 131 L Ed. 2d 490
(1995).


                                             23
No. 74459-3-1/24


       We review de novo constitutional issues.82

       Here, Mockovak argues that Brady requires disclosure of any document

showing a tacit understanding between the KCPA or USAO and Kultin to assist

Kultin in his immigration application. He argues that the trial court erred in

rejecting this argument because it balanced his interest in securing Brady

material against the County and the KCPA's interests in protecting their work

product. Instead, he argues that Brady rights should always trump work product

protection.

       We agree that a balancing test is inapplicable to this case. Nevertheless,

Mockovak cannot raise his Brady claims in this case.

       In concluding that the PRA required such a balancing test, the trial court

relied upon the D.C. Circuit Court of Appeals' decision in Roth v. United States

Department of Justice.83 In that case, the D.C. Circuit Court of Appeals

considered Lester Bower's Freedom of Information Act (FOIA) suit for evidence

he argued to be exculpatory.84 The United States argued that such evidence

was protected from disclosure under a privacy exemption specific to the FOIA.85




       82 McCuistion, 174 Wn.2d at 387.


       83 642 F.3d 1161 (D.C. Cir. 2011).

       84 id at 1166-68.

       85 Id.



                                            24
No. 74459-3-1/25


Analysis of that exemption required the court to balance the public's interest in

disclosure against the privacy interests at stake.86

       But this court held that approach to be improper in considering PRA

challenges in King County v. Sheehan.87 William Sheehan was a critic of law

enforcement and had made public records requests for the names, job titles, and

pay scales of every police officer employed by King County.88 The County sued

and moved to enjoin Sheehan from investigating these records.89 The trial court

granted the County's motion, in part, after balancing the interests of disclosure

against the County's in effective law enforcement.90

       This court found that balance inappropriate.91 While that analysis was

proper in the federal courts' consideration of FOIA's privacy exemption, the PRA

was "more severe."92 It required that the agency resisting disclosure show both a

privacy interest and a lack of legitimate public interest.93 As such, "the use of a



       86idat1174.

       87 114 Wn. App. 325, 57 P.3d 307 (2002).

       88
            id at 331.

       89
            \±


       90
            id at 334.

       91
            id at 344.

       92
            id

       93
            Id. at 342.



                                             25
No. 74459-3-1/26


test that balances the individual's privacy interest against the interest of the

public in disclosure is not permitted."94

       The controlling rule here is that a litigant may only assert his Brady rights

in an appeal of or collateral attack on a criminal conviction.95 Numerous federal

courts have held that Brady claims are "proper only in connection with a criminal

proceeding," not a suitfor the disclosure of public records.96 The Supreme Court

has instructed that Brady is "the wrong framework" for evaluating the

government's post-trial disclosure obligations.97 Similarly, Roth held that a public

records request is "not a substitute" for a proper Brady request in a criminal

case.98

       Mockovak argues that Roth held differently. He argues that the D.C.

Circuit Court of Appeals ordered disclosure of the documents Bower sought

under Brady. This is incorrect. As stated, the Roth court balanced the public

interests at stake against the United States' interest in withholding documents. In

arguing for the public's interests, Bower argued that the public had an "interest in

knowing whether the federal government complied with its Brady obligation," so


       94 id at 344.

       95 Roth, 642 F.3d at 1177.

       96 Stimac v. U.S. Dep't of Justice, 620 F. Supp. 212, 213 (D.D.C.
1985); accord Roth, 642 F.3d at 1176.

       97 Dist. Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52,
69, 129 S. Ct. 2308, 174 L. Ed. 2d 38 (2009).

          98 Roth, 642 F.3d at 1177.


                                              26
No. 74459-3-1/27


as to prevent unfair convictions.99 He did not argue he had a constitutional due

process right to the documents.

       Noting this distinction, the D.C. Circuit explained that while Bower

"certainly has an intense personal interest in obtaining whatever information

might bolster the Brady claims he is presenting in his collateral attacks on his

conviction, [his] personal stake in the release of the requested information is

'irrelevant' to the balancing of public and third-party interest required."100 The

court ultimately concluded that the public interests at stake outweighed the

government's interest, not that Bower was entitled to disclosure under Brady.101

       Here, Mockovak attempts to raise Brady claims in a PRA action. He

cannot do so. As the County correctly explains, "[t]his is not to say that the PRA

trumps or otherwise limits what Brady allows. It simply means that the issue

must be litigated in the proper forum."

                                Work Product Waiver


       Mockovak argues that the County waived the work product protection

attached to communications made to the U.S. Attorney in his Appendix B

documents. We disagree.




       "id. at 1175.

       100 Id. at 1177.

       101
             Id. at 1181.



                                             27
No. 74459-3-1/28


       Waiver occurs when "a party discloses documents to other persons with

the intention that an adversary can see the documents."102 Thus, mere

disclosure is insufficient if the party who allegedly waived the protection did not

do so in a way that would disclose the documents to an adverse party.

       We review de novo evidentiary issues underlying a summary judgment

order.103

       Relatedly, the County and the KCPA claim that the "common interest" rule

protects communications to the U.S. Attorney. Under this rule, "communications

exchanged between multiple parties engaged in a common defense remain

privileged" and do not lose their protection by waiver.104

       Mockovak argues this rule is not met because the KCPA and the USAO

frequently came to tension over what evidence to disclose in the original

prosecution. Tensions alone do not waive the protection.

       Aligned counsel, even counsel within the same office may disagree. Such

tension may be greater when counsel must function under different governmental

systems. This tension does not preclude counsel from sharing common

investigative and prosecutorial interests. The United States did not lose those

shared interests because it chose to assist the State in prosecuting Mockovak

rather than bring charges itself.


       102 Harris v. Drake, 152 Wn.2d 480, 495, 99 P.3d 872 (2004).

       103 Neigh. Alliance of Spokane County, 172 Wn.2d at 715.


      104 C.J.C. v. Corp. of Catholic Bishop of Yakima, 138 Wn.2d 699, 716, 985
P.2d 262 (1999).


                                            28
No. 74459-3-1/29


       Mockovak responds by citing a recent case from Division Three where the

court concluded that multiple agencies cooperating in joint litigation satisfied the

common interest rule.105 But that case never limited the rule to such contexts.

Mockovak provides no authority for the argument that two parties cannot share a

common interest when only one ultimately litigates the matter. As such, his

argument is unpersuasive.106

       Mockovak also argues that the County waived work product protection in

documents 100,109, 110, and 111 by disclosing them to Kultin.

       The County and the KCPA point to the Third Circuit Court of Appeals'

persuasive opinion in Sporck v. Peil as authority for the proposition that

disclosure to a friendly witness does not constitute waiver.107 In that case,

shareholders brought a securities fraud class action against National

Semiconductor Corporation.108 Class representatives deposed Charles Sporck,

President of the company.109 In preparation for his deposition, Sporck's counsel




       105 Kittitas County v. Allphin, 195 Wn. App. 355, 368, 381 P.3d 1202
(2016).

      106 See Darkenwald v. Emp't Sec. Dep't, 183 Wn.2d 237, 248, 350 P.3d
647(2015).

       107 759 F.2d 312 (3d Cir. 1985).

       108 id at 313.

       109 Id.


                                             29
No. 74459-3-1/30


prepared him by showing him numerous documents, already produced to the

class representatives.110

      At the deposition, Sporck referred to the documents.111 Class attorneys

then asked if he had examined any documents in preparation for the

deposition.112 When he answered in the affirmative, the class attorneys moved

for defense counsel to identify and produce them.113 Defense counsel refused to

identify them, explaining that defense counsel had already produced the

documents and that the selection of documents was itself protected work

product.114 The trial court granted the class's motion, and Sporck petitioned for a

writ of mandamus to order non-disclosure.115

       While the Third Circuit Court of Appeals declined to grant that writ, it

directed the trial court to order the document selection protected as work product,

even after disclosure to a witness.116 In doing so, it concluded that defense




       110 id

       111 id   at 314.


       "2\±


       113id

       114id

       115 id

       116 Id. at 318-19.


                                             30
No. 74459-3-1/31


counsel's presentation to Sporck of the documents, so selected, was a "proper

and necessary preparation of his client's case."117

       Here, Mockovak points to two cases in response in order to support his

argument. He first cites State v. Garcia, where this court considered whether a

prosecutor's notes of a witness interview, absent the prosecutor's "opinions,

theories or conclusions" constituted protected work product.118 This court

determined that the notes did not.119 Thus, this court never had the opportunity

to consider waiver of protection for actual work product disclosed to a witness.

       Mockovak also points to S.E.C. v. Gupta in the District Court for the

Southern District of New York.120 In that case, Rajat Gupta, the defendant in a

securities civil enforcement action, deposed Lloyd Blankfein, C.E.O. of Goldman

Sachs.121 Gupta's counsel asked Blankfein if he had met with anyone aside from

his own attorneys in preparation for the deposition.122 Blankfein responded that

he had met with attorneys from the USAO and the Securities and Exchange




       117idat316.

       118 45 Wn. App. 132, 138, 724 P.2d 412 (1986).




       120 281 F.R.D. 169 (S.D.N.Y. 2012).

       121 id at 170.

       122 id


                                             31
No. 74459-3-1/32


Commission (SEC).123 Counsel asked him if those attorneys had shown him any

documents at those meetings, to which the SEC objected, claiming that such

documents were protected work product.124

      Gupta moved to compel production of those documents.125 The court

granted that motion, concluding that the SEC and USAO had waived the

documents' work product protection.126 But it did so because those agencies

shared no common interest with Blankfein.127 Blankfein was represented by his

own attorneys and took no position in the civil enforcement action.128

      Here, by contrast, Kultin participated not only in the prosecution of

Mockovak but in the earlier investigation. The investigation began with his call to

the FBI.129 As such, he certainly took a position in this case, sharing a common

interest in seeing Mockovak tried for his crimes. Thus, Mockovak cannot

demonstrate a genuine issue of material fact whether the United States, the




      123 id

       124 id at 170-71.

       125]dat171.

       126 Id at 173.


       127id at 172.

       128 id

       129 In re Mockovak, No. 69390-5-I, slip op. at *2.


                                            32
No. 74459-3-1/33


County, or the KCPA waived work product protection by disclosing documents to

Kultin related to their common interest with Kultin.

                              Anticipation of Litigation

       Mockovak argues that the documents within his Appendix C are not

protected work product because federal attorneys prepared them and could not

have done so in anticipation of litigation because the United States did not

ultimately prosecute Mockovak. We disagree.

       In Dever v. Fowler, this court concluded that the "protection under the

work product doctrine extends to documents prepared in anticipation of any

litigation, regardless of whether the party from whom it is requested is a party in

the present litigation."130 In that case, the State had earlier charged George

Dever with arson.131 After the earlier trial court dismissed that charge, Dever

sued the investigating fire department and its investigator.132

       In the course of litigation, Dever demanded disclosure of certain

documents prepared by his earlier prosecutor.133 The King County prosecutor,

not party to the suit, claimed that the sought after documents were protected

work product.134 Dever rebutted that work product protection did not apply to


       130 63 Wn. App. 35, 47, 816 P.2d 1237 (1991).

       131 Id at 38.


       132 id at 39.

       133 id at 46.

       134 id


                                             33
No. 74459-3-1/34


documents prepared by non-party witnesses.135 This court rejected that

argument and concluded that the documents prepared in anticipation of litigation

may be protected even when the preparer is not a party to the present

litigation.136

        Relatedly, our supreme court has held that a party may effectively claim

work product protection on behalf of a non-party.137

        In this case, the USAO prepared the documents within Appendix C in

anticipation of prosecuting Mockovak. That it ultimately agreed with the KCPA

that the State should prosecute is irrelevant. The rule in Dever allows the

protection of these documents as work product.

        Nonetheless, Mockovak argues that neither the United States nor the

County ever provided affirmative evidence that the e-mails were prepared in

anticipation of litigation. This argument is unpersuasive. The e-mails speak for

themselves as all concern an ongoing criminal investigation with the intent to

seek prosecution. Thus, Mockovak cannot demonstrate a genuine issue of

material fact whether the United States attorneys prepared the documents

without anticipation of litigation.




        135 Id


        136 id at 47.

        137 Harris, 152 Wn.2d at 492.


                                            34
No. 74459-3-1/35


                          Overcoming Work Product Protection

       Whether or not the County or the KCPA waived the work product

protection in this case, Mockovak argues that he has overcome that protection by

demonstrating a substantial need for disclosure and an undue hardship in

acquiring the documents by other means. We again disagree.

       As discussed above, there are two tiers of work product protection.138

First, an attorney's documented "mental impressions, conclusions, opinions, or

legal theories" are always immune from discovery.139 Second, other documents

"prepared in anticipation of litigation or for trial by or for another party" are not

exempt from disclosure when the party seeking disclosure demonstrates a

substantial need for them and an inability without undue hardship to procure their

equivalent by other means.140

       The County and the KCPA argue that the documents are "opinion"

product. We agree.

       As the County and the KCPA state, the document redactions "consist of

attorney perceptions and analysis relating to case preparations and plans,

evidence, witnesses and strategy in Mockovak's criminal trial." Based on our

careful review of the unredacted and sealed documents in the record on appeal,

this characterization is accurate. Such content represents the "mental



       138 CR 26(b)(4).

       139 id

       140 Id.


                                               35
No. 74459-3-1/36


impressions, conclusions, opinions, or legal theories" of the drafting attorneys.141

Such work product is always immune from disclosure.142 As such, these

documents are absolutely immune from disclosure.

       Even if the documents are only regular work product, the documents are

protected from disclosure unless Mockovak can show a "substantial need" for

them and an inability to procure them otherwise without "undue hardship."143

       "'Substantial need' in the litigation context means that the information is

vital to the preparation of the party's case."144 But a party does not demonstrate

substantial need "simply because he does not have them."145

      The County and the KCPA do not contest that Mockovak would face an

undue hardship in seeking to acquire the documents through other means.

Rather, the County and the KCPA argue that the documents at issue contain no

information about Kultin's immigration status that Mockovak did not know

already. Specifically, they highlight five factual matters for which Mockovak

seeks evidence. First, Kultin was a lawful permanent resident at the time of trial

rather than a U.S. citizen. Second, Kultin was in the United States on asylum



       141 id

       142 Id.

       143
             Id.


       144 Soter v. Cowles Publ'g Co., 131 Wn. App. 882, 899, 130 P.3d 840
(2006).

       145 Kleven v. King County Prosecutor, 112 Wn. App. 18, 25, 53 P.3d 516
(2002).


                                            36
No. 74459-3-1/37


status. Third, the Immigration and Naturalization Service (INS) arrested Kultin in

1997. Fourth, the United States never offered Kultin immigration assistance for

his help as an informant and witness. Fifth, Kultin had an application for

citizenship pending at the time of trial.

       The record shows that the State provided evidence of the first three facts

to Mockovak. On October 28, 2010, the State forwarded an e-mail between the

KCPA and Carver indicating that Kultin was a lawful permanent resident at that

time. The same e-mail indicated his asylum status. The KCPA also provided an

FBI report to Mockovak during criminal discovery that indicated that Kultin had

been "once arrested by [an] immigration official[] who believed [that] his

immigrant paperwork was not in order. However, it was discovered that his

papers were in order and the case was dismissed." Thus, Mockovak cannot

show substantial need for documents evidencing these facts. Only the questions

of when Kultin filed for citizenship and whether he received immigration

assistance from the United States or the County remain at issue.

       On May 26, 2010, the State provided documentation to Mockovak

showing that Kultin had an immigration application pending in April 2009. Later,

during this case, Kultin testified by deposition that he filed for citizenship again

during 2011. Mockovak points to the crucial gap between the two dates and

argues that the State never informed him whether Kultin had a citizenship

application pending at the time of the criminal trial.

       But Mockovak's theories on the nature of that gap are all speculative. He

speculates that Kultin may have intended to file a new application after trial,


                                              37
No. 74459-3-1/38


capitalizing on the assistance he rendered the FBI and State. He also

speculates that the 2009 application may have remained pending during trial or

been denied before. He further speculates that Kultin may have lied in the

deposition and that the County, the KCPA, or the United States might have

known it. His theories all fail because they do not suggest that the County, the

KCPA, or United States have any information beyond what they provided.

       Regarding the possibility that Kultin obtained assistance from the DOJ or

King County, the County and the KCPA argue that they already gave Mockovak

complete information about any potential immigration assistance offered to

Kultin. Specifically, they point to Carver's declaration of December 3, 2010 and a

letter from the KCPA to defense counsel on May 10, 2010. Carver and the

author of the letter averred that Kultin did not receive any promise of immigration

assistance for his testimony. The County and the KCPA also highlighted Kultin's

testimony that he had participated in the investigation to do the right thing.

Again, Mockovak can only speculate that these statements were disingenuous

but his speculation falls below the substantial need he must demonstrate.

       Mockovak also argues that the County must disclose documents 26, 77,

and 99 in full. The County concedes that these documents involve "immigration-

related fact[s] concerning Kultin." Mockovak speculates that they may detail

some immigration assistance offered by the United States. The documents

contain no such information but only incidental facts already disclosed to

Mockovak well before the criminal trial. As such, he cannot show substantial

need for them because they are not vital to his case.



                                             38
No. 74459-3-1/39


       Mockovak argues in reply that two federal cases show that he has

demonstrated substantial need. Neither are persuasive in this case.

       The first, Benn v. Lambert,146 is inapposite to this case. There, the Ninth

Circuit Court of Appeals considered whether a habeas corpus petitioner made a

sufficient showing of substantial need to overcome work product protections of

documents he was entitled to under Brady.147 But as discussed earlier, Brady

claims are only applicable in such a collateral attack on a conviction or in the

direct appeal itself. This case is thus irrelevant to the court's determination here

because this is a PRA action, the improper forum for Brady claims.

       In the second case, Doubleday v. Ruh, county sheriffs arrested Allison

Doubleday for assault of a police officer, but a state trial court found her not

guilty.148 She then brought a 42 U.S.C. § 1983 challenge and sought the

prosecutor's file on her criminal case.149 The defendant sheriff's officers refused,

asserting that the documents were protected work product.150 The District Court

for the Eastern District of California concluded otherwise, holding that the

documents were not work product for reasons not relevant here.151 But it


       146 283 F.3d 1040 (9th Cir. 2002).

       147id at 1054.

       148149 F.R.D. 601, 604 (E.D. Cal. 1993).

       149 id

       150 id

       151 id at 605.


                                             39
No. 74459-3-1/40


considered in arguendo whether Doubleday could show substantial need to

overcome the work product protection if it applied.152 It held that she could show

sufficiently substantial need to justify disclosure of witness statements

contemporaneous with her arrest.153

       Here, in contrast, Mockovak does not seek witness statements but rather

communications between attorneys. Even the documents for which he argues

the KCPA waived work product protection by disclosing to Kultin come from the

attorneys, not the witnesses. As such, Doubleday is neither analogous nor

persuasive. Mockovak still cannot show a genuine issue of material fact showing

he has substantial need for the documents.


                                  NCIC REPORT

       Mockovak argues that the County and the KCPA improperly withheld

Kultin's NCIC report and that the County and the KCPA waived any protection of

the report when Carver summarized the information he learned from the report.

We disagree.

      The PRA permits agencies to not disclose records when "[an]other statute

. . . exempts or prohibits disclosure."154 The County and the KCPA argue that 28

U.S.C. § 534 satisfies this exemption. That statute governs the DOJ's

acquisition, preservation, and exchange of criminal identification records with



      152 id at 607-08.

       153 id

      154 RCW 42.56.070(1).


                                            40
No. 74459-3-1/41


other federal, state, tribal, and municipal agencies.155 Pursuant to subsection (b)

of that statute, such exchange "is subject to cancellation if dissemination is made

outside the receiving departments or related agencies."

       Here, Mockovak argues that Carver waived the "other statute" exemption

when he testified in his declaration that he had learned certain information from

the report. But, a federal statutory bar on disclosure cannot be waived.156

      Two FOIA cases are instructive. In the first, Dow Jones & Co. v. United

States Department of Justice, the District Court for the Southern District of New

York explained that "[voluntary disclosures of all or part of a document may

waive an otherwise valid FOIA exemption."157 But it also explained that the party

seeking that document must show that "the withheld information has already

been specifically revealed to the public and that it appears to duplicate that

being withheld."158 As a result, "neither general discussions of topics nor partial

disclosures of information constitute waiver of an otherwise valid FOIA

exemption."159

       In that case, the plaintiffs, as owners of the Wall Street Journal, sought

disclosure of an FBI investigation report pertaining to the alleged suicide of a


       155 28 U.S.C. §534(2011).

       156 S.E.C. v. Yorkville Advisors LLC, 300 F.R.D. 152, 167 (S.D.N.Y. 2014).

       157 880 F. Supp. 145, 150-51 (S.D.N.Y. 1995).

       158idat151.

       159 id


                                             41
No. 74459-3-1/42


White House counsel.160 They argued that the government had waived the

exemption when the Deputy Attorney General disclosed certain basic information

about the scene of the suicide and the preliminary investigation.161 Such

preliminary information included initial conclusions as to the nature of death and

the presence of certain evidence at the scene of the crime.162 It also included the

counsel's recent mental health history.163 Yet the court held this "limited,

general, and cursory discussion[]" to be insufficient to waive the FOIA

exemption.164

       Mockovak also cites, without avail, New York Times Co. v. United States

Department of Justice to support his argument. In that case, the New York

Times sought disclosure under the FOIA of a memorandum drafted by the DOJ

and Department of Defense justifying the Obama Administration's use of drone

strikes.165 The Second Circuit Court of Appeals held that the DOJ had waived

the FOIA exemption for attorney-client privilege when it released a 16 page white

paper that shared "substantial overlap" with the memorandum, largely




       160 id at 146.

       161 Id. at 147, 150-51.

       162 id at 147.

       163 id

       164idat151.

       165 756 F.3d 100 (2d Cir. 2014).


                                             42
No. 74459-3-1/43


"parallelling]" the longer document's legal analysis.166 Such a disclosure

mirrored the specific disclosure that duplicates the withheld document

contemplated in Dow Jones & Co.

       Washington law is consistent with these cases. In Soter v. Cowles

Publishing Co., Division Three of this court concluded that while "[documents

released to a civil litigation adversary may lose their [work product and attorney-

client] privileged statusi,] disclosing facts contained in privileged documents (in

interrogatories, for instance) does not mean the other party gets the document

itself."167 That case concerned a newspaper's PRA suit for records of a school

district investigation of a student's death.168 The District had released certain

information to the public and the deceased child's family.169 The newspaper

argued that in doing so, the District waived the privilege in the reports.170 The
court held that while they might have waived privilege as to the disclosed

information, the documents themselves remains protected.171

       Here, by contrast, Carver merely declared that he was "familiar with

Kultin's criminal and arrest history report, which reflects only one arrest. That


       166idat116.

       167 131 Wn. App. 882, 907, 130 P.3d 840 (2006).

       168 id at 889.

       169 id

       170 id at 906.

       171 id


                                             43
No. 74459-3-1/44


arrest was on January 17, 1997, by U.S. Customs, Immigration and

Naturalization (INS) Service. Kultin has no known criminal convictions."

       This information is limited, general, and cursory. Aside from the date and

arresting agency, it provides no further specifying information such as location,

crime charged, or disposition. In no way does it resemble the substantial overlap

found in New York Times Co. As such, this disclosure was not sufficient to waive

the protections of the PRA's "other statute" exemption and 28 U.S.C. § 534.

                                 ATTORNEY FEES

       Mockovak argues that he is entitled to fees pursuant CR 37(a)(4) and

RCW 42.56.550(4). We deny his request.

       CR 37(a)(4) entitles a prevailing party in a discovery dispute to the

reasonable expenses incurred in obtaining that order, including attorney fees.

RCW 42.56.550(4) permits the prevailing party in a PRA dispute to receive

reasonable attorney fees incurred in litigating the dispute. "[W]here a prevailing

party is entitled to attorney fees below, they are entitled to attorney fees if they

prevail on appeal."172

       As discussed, Mockovak does not prevail in either his discovery dispute or

the merits of his PRA claim. Thus, an award to him of reasonable attorney fees

is unwarranted under either CR 37(a)(4) or RCW 42.56.550(4).




      172 Sharbonov. Universal Underwriters Ins. Co., 139 Wn. App. 383, 423,
161 P.3d 406 (2007).


                                              44
No. 74459-3-1/45


      We affirm the summary judgment order and the order denying the motion

to compel discovery. We deny Mockovak's request for an award of reasonable

attorney fees.

                                                    ^&%,ZT
WE CONCUR:




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                                        45
