                                                                                        FILED
                                                                                   COURT OF' APPEALS
                                                                                      DIVISION II

                                                                                  2015 AUG i 1      AM 9. 11

                                                                                  STATE OF WASHINGTON

                                                                                  BY
                                                                                           0,5ptlTy
    IN THE COURT OF APPEALS. OF THE STATE OF WASHINGTON

                                              DIVISION II

VALAREE DOEHNE,                                                                No. 46467 -5 -II


                                   Respondent,


          V.



EMPRES HEALTHCARE MANAGEMENT,                                        UNPUBLISHED OPINION
LLC, a Washington Limited Liability
Company d/ b/ a FRONTIER
REHABILITATION and EXTENDED CARE
CENTER; EMPRES WASHINGTON
HEALTHCARE, LLC, a Washington Limited

Liability Company d/b/a FRONTIER
REHABILITATION and EXTENDED CARE
CENTER; and EVERGREEN
WASHINGTON HEALTHCARE
FRONTIER, LLC, a Washington Limited
Liability Company d/b/ a FRONTIER
REHABILITATION and EXTENDED CARE
 CENTER,




       LEE, J. —      Empres Healthcare Management LLC, EmpRes Washington Healthcare LLC,

and Evergreen Washington Healthcare Frontier LLC appeal an order compelling their disclosure

of the first paragraph of a document that they assert is protected by the attorney- client privilege.

They also argue that the final sentence of the paragraph is protected from discovery under the work

product   doctrine.   We   agree   that the   paragraph   as   a whole   is   protected   by   the attorney- client
     No. 46467 -5 -II



     privilege and that its final sentence is protected opinion work product, and we reverse the trial


     court' s order compelling discovery of this material.

                                                          FACTS


             Evergreen Washington Healthcare Frontier LLC operates the Frontier Rehabilitation and


     Extended Care Center in Longview ( Frontier           facility).   EmpRes Healthcare Management LLC


      EmpRes) is based in Vancouver and provides management services to .the Frontier facility.'

     EmpRes has an in-house legal department in Vancouver and a risk management director (formerly

     Dick Pflueger) who acts as a conduit between the legal department and insurers regarding liability

     issues, including workers' compensation and third -party liability.

             On the night of February 2, 2010, Valaree Doehne left the Frontier facility after visiting

I'   her husband   and   tripped   over a cement wheel      stop in the parking lot.   She went back into the


     facility for treatment of her injuries but soon was taken by ambulance to the hospital.

             In the days following Doehne' s accident, EmpRes' in-house legal department directed

     Pflueger to conduct an investigation into the incident. At Pflueger' s request, Heather Clarno, an

     administrative assistant to EmpRes' regional operations manager, performed an investigation and

     prepared a one- page report of her findings. She provided this report to EmpRes' risk management


     and legal departments.


             In 2013, Doehne filed an amended complaint for damages against the Frontier facility and

     the   companies    providing it   with   operating   and management services.     Doehne alleged in her


     complaint that at the time of her fall, it was dark and the parking lot and sidewalk outside the




      EmpRes was formerly known as EHC Management, LLC but we refer to it as EmpRes throughout
     this opinion for the sake of clarity.


                                                            2
No. 46467 -5 -II



Frontier    facility   were not well       lit. She also alleged that the wheel stop was not well marked or


painted.




           Doehne subsequently sought discovery of any written statement or report made to anyone

at the Frontier facility concerning the incident, including the production of "all memos, documents,

logs,   notes or other written or electronic memorialization of reports."                 Clerk' s Papers ( CP) at 12-


13.     The defendants objected on the basis that Doehne' s request involved work product and

privileged material.



           Doehne then moved to             compel     production    of   the requested   material.       The defendants


responded that the documents being withheld on claim of privilege related to Pflueger' s post -

incident investigation. Their attorney filed a declaration stating:

                   Mr. Pflueger          maintained     a paper    file regarding this incident.         This file
           includes two incident reports from individuals at the facility, which he believes he
           requested to present to the in-house legal department as part of its analysis of the
           incident.     The paper file also includes analysis about plaintiff' s demand that
           defendants pay for her medical expenses, as well as other documents analyzing the
           possibility   of   settling   plaintiff' s potential claims prior     to her   filing   a   lawsuit.   In

           addition, withheld email correspondence involving Mr. Pflueger includes in-house
           attorneys and/ or paralegals as a sender or recipient.



CP at 53 ( citations omitted).


           During the hearing on Doehne' s motion to compel, the defendants explained that the two

incident reports in Pflueger' s file included Clarno' s report and one written by a nurse at the Frontier

facility   who   treated Doehne           after   her fall.'   The defendants argued that Clamo' s report was


prepared in anticipation of litigation because Doehne had asked the Frontier facility to pay her




 The defendants did not seek review ofthe trial court' s order requiring them to disclose the nurse' s
report.




                                                               3
No. 46467 -5 -II



medical expenses after         sustaining her injuries. The trial court requested an in -camera review of


Clarno' s report and invited the parties to submit additional authority or evidence regarding whether

the report was privileged.



        The defendants filed a declaration from Clarno stating that she had not been present at the

Frontier facility at the time of Doehne' s injuries and had no personal knowledge of the incident.

Clarno added:


                   In the days following the incident, I performed an investigation and
        prepared        a   one -paged   type   report    regarding my findings.              I    prepared this
        investigation and incident report consistent with how I generally performed these
        tasks   for my      employer on anticipated worker' s compensation claims.                    The report
        was prepared for and provided to the risk management and legal departments of the
        management company in Vancouver. My investigation and report were performed
        in anticipation of litigation by Ms. Doehne.

CP at 70.


        Following in -camera review of the Clarno report, the trial court ruled that the second, third,

and fourth paragraphs were protected work product and not discoverable because they were

 clearly   made    in   anticipation of   litigation." Verbatim Report           of   Proceedings ( VRP)    at   41.    The


trial court also ruled that the first paragraph was not protected work product and required its


production. The court entered an order compelling discovery that did not specifically address the

Clarno report.


         The defendants moved for reconsideration, arguing that the trial court' s oral ruling failed

to   address whether        the Clarno   report was      an   attorney- client   privileged       communication.       After


arguing that the attorney- client privilege applied, the defendants asserted in the alternative that the

final sentence of the first paragraph in Clarno' s report should be protected from discovery as

opinion work product.           In its order denying reconsideration, the trial court stated that the first



                                                              0
No. 46467 -5 -II



paragraph of       Clarno'      s report was " not protected   by   the attorney[ -]client   privilege nor by the work

product      doctrine   and     is therefore discoverable." CP at 103.


             The defendants sought discretionary review and sent this court a redacted copy of Clarno' s

report for in -camera review. We granted the defendants' motion for discretionary review and now

consider whether the attorney- client privilege or the work product doctrine protects the Clarno

report from disclosure.


                                                      ANALYSIS


A.           STANDARD OF REVIEW


             The attorney- client privilege is codified in RCW 5. 60.060( 2)( a), and the work product rule

is   set   forth in CR 26( b)( 4).     Issues of statutory construction are questions of law that we review de

novo.       Fellows   v.   Moynihan, 175 Wn.2d 641, 649, 285 P. 3d 864 ( 2012);                 Jane Doe v. Corp. of

President of Church ofJesus Christ ofLatter -Day Saints, 122 Wn. App. 556, 563, 90 P. 3d 1147

 2004),      review   denied, 153 Wn.2d 1025 ( 2005).              We review de novo the interpretation of court


rules as well. Hundtofte v. Encarnaci6n, 181 Wn.2d 1, 13, 330 P. 3d 168 ( 2014).


             We review the trial court' s application of the law in a discovery order for abuse of

discretion. Cedell         v.   Farmers Ins. Co., 176 Wn.2d 686, 694, 295 P. 3d 239 ( 2013). A court abuses


its discretion when its decision is manifestly unreasonable or based on untenable grounds. Dana

v.   Piper, 173 Wn.        App.    761, 769, 295 P. 3d 305,    review    denied, 178 Wn.2d 1006( 2013). A court


necessarily abuses its. discretion when basing its decision on an erroneous view of the law or

applying an incorrect legal analysis. Dana, 173 Wn. App. at 769.




                                                               I
No. 46467 -5 -II



B.        ATTORNEY- CLIENT PRIVILEGE


          Washington' s attorney- client privilege is set forth in RCW 5. 60. 060( 2)( a):

          An attorney or counselor shall not, without the consent of his or her client, be
          examined as to any communication made by the client to him or her, or his or her
          advice given thereon in the course of professional employment.


          The purpose of this privilege is to encourage clients to make full disclosure to an attorney

so   that the attorney      can render effective   legal   assistance.   Pappas v. Holloway, 114 Wn.2d 198,

203, 787 P.2d 30 ( 1990);         R.A. Hanson Co. v. Magnuson, 79 Wn. App. 497, 502, 903 P. 2d 496

 1995),   review      denied, 129 Wn.2d 1010 ( 1996).            The attorney-client privilege applies to any

information generated by a request for legal advice, including documents created by clients with

the intention   of    communicating    with   their attorneys.   West    v.   Dep' t ofNatural Res., 163 Wn. App.

235, 247, 258 P. 3d 78 ( 2011),        review   denied, 173 Wn.2d 1020 ( 2012).            The privilege does not


protect documents that are prepared for some purpose other than communicating with an attorney.

Hangartner      v.   City   of Seattle, 151 Wn.2d 439, 452, 90 P. 3d 26 ( 2004).          The burden of showing

the .existence of an attorney- client relationship and that the requested information involves a

privileged communication falls on the party asserting the privilege. R.A. Hanson Co., 79 Wn. App.

at 501.


          Clarno' s report was part of the post -incident investigation performed by EmpRes' risk

management director at the direction of the company' s in-house legal department. The attorney-

client privilege may apply to communications between in-house counsel and multiple lower -level

employees in an organization when those communications are made in order to secure legal advice.

Upjohn Co.      v.   United States, 449 U.S. 383, 394- 95, 101 S. Ct. 677, 66 L. Ed. 2d 584 ( 1981);          see




also   Hasso   v.   Retail Credit Co., 58 F.R.D. 425, 428 ( E. D. Penn. 1973) (        employee' s communication




                                                            G
No. 46467 -5 -II



to corporation' s attorney, made at the direction of his superiors in the corporation, was privileged).

The defendants maintain that because Clarno was acting on EmpRes' behalf in its attempt to obtain

advice from in-house counsel, her report was privileged. See Upjohn, 449 U. S. at 389- 90 ( client


of in-house attorney is company itself).

         Doehne argues that Clarno prepared her report for her employer rather than a specific


attorney and that the report was neither communication nor advice between a client and an.

attorney.      Doehne points out that Clarno stated in her declaration that she prepared her report

 consistent with        how I generally    performed   these tasks     for my   employer."     CP at 70. Doehne adds


that even if Pflueger presented Clarno' s report to in-house counsel as part of his investigation, the

act of passing documents to an attorney does not make them privileged communications between

a client and an        attorney.    See In re Det. of Williams; 147 Wn.2d 476, 494, 55 P. 3d 597 ( 2002)

 party could not create privilege by giving Social Security records to his attorney).

          The defendants respond that Pflueger assembled the file. that included Clarno' s report to


assist in-house counsel in " analyzing the possibility of settling plaintiff's potential claims prior to

her   filing   a   lawsuit." . CP   at 53. While Clarno may have prepared her report consistently with the

manner in which she prepared other reports, the purpose rather than the manner of preparation


guides our analysis. That purpose was to obtain legal advice for EmpRes, which functioned as

both employer and client in this case.


          The defendants compare Clarno' s report to notes that a nurse and teacher made after


witnessing         a medical crisis    during   a school   field   trip in Soter   v.   Cowles Pub' g Co., 162 Wn.2d


716, 174 P. 3d 60 ( 2007).            In that case, the nurse and teacher provided their notes to the school


district' s attorneys and investigator with the understanding that these materials would be



                                                              7
No. 46467 -5 -II



privileged.     Id.   at    747.    These    notes were privileged         because they   were "    created by clients, in

anticipation of    litigation,      with   the intention     of   communicating information to the            attorneys."   Id.


            The record here does not show whether Clarno understood that her report would be

privileged. However, as in Soter, Clarno did prepare the report " for and provided [ it] to the risk

management and             legal departments ...       in    anticipation of   litigation."   CP   at   70.    Clamo' s report


also   is   comparable      to the incident      report at   issue in Flynn    v.   University   Hospital, Inc., 172 Ohio


App.    3d 775, 876 N.E.2d 1300 ( 2007). In Flynn, a nurse prepared a report about a patient' s surgery


for attorneys in the hospital' s risk management department. Id. at 778. Because the nurse prepared


the report for the purpose of notifying the hospital' s legal counsel of possible claims, the report

was protected      by      the attorney- client    privilege.       Id. at 779- 80; see also Cleveland Clinic Health


Sys.— E. Region       v.    Innovative Placements, Inc., 283 F. R.D. 362, 368 ( N. D. Ohio 2012) ( attorney-


client privilege generally covers incident reports prepared for hospital risk management

department).


            The purpose of EmpRes' risk management position "is to act as a conduit between the legal


department and insurers regarding liability issues, including workers' compensation and third -

party   liability, with the        goal of   avoiding litigation     and   minimizing   liability." CP at 59. The record

shows that Clarno' s report was prepared to assist in-house counsel in addressing issues of liability

and potential litigation. See Flynn, 172 Ohio App. 3d at 779- 80 ( privilege applied where hospital

demonstrated that report was a communication prepared by its employee for the use of its attorneys

in   anticipation of       litigation).    We hold that the first paragraph of the Clarno report is protected by

the attorney- client privilege and that the trial court abused its discretion in compelling the

paragraph' s     disclosure.
No. 46467 -5 -II



C.        WORK PRODUCT


          Although our resolution of the first.issue does not require our resolution of the second, we


briefly address the work product issue. The defendants' work product argument is directed at the

final sentence of the first paragraph in Clarno' s report. They maintain that because this sentence

is a mental impression or opinion, it is exempt from disclosure without any consideration of

Doehne' s need for the information.


          Work    product refers       to documents     prepared   in   anticipation of   litigation. Soter v. Cowles


Pub' g Co., 131 Wn.        App.   at   882, 893. 130 P. 3d 840 ( 2006),       aff'd, 162 Wn.2d 716, 174 P. 3d 60

 2007). It consists of factual information and mental impressions, research, legal theories, opinions


and conclusions.        Soter, 131 Wn.      App.   at   893.    The court may allow a party to discover factual

information prepared in anticipation of litigation upon a showing of substantial need for the

materials in preparing the party' s case and an inability to obtain the substantial equivalent without

undue hardship. CR 26( b)( 4); Heidebrink v. Moriwaki, 104 Wn.2d 392, 395, 706 P.2d 212 ( 1985).

Opinion work product, however, enjoys nearly absolute immunity, and a court may release it only

in very    rare   and   extraordinary     circumstances.        CR 26( b)( 4); Soter, 131     App.   at   894.   Mental


impressions       embedded    in factual    statements. should      be   redacted.   Limstrom v. Ladenburg, 136

Wn.2d 595, 612, 963 P. 2d 869 ( 1998).


          Work product documents need not be prepared personally by counsel; they can be prepared

by or for the party or the party' s representative as long 'as they are prepared in anticipation of

litigation. CR 26( b)( 4); Soter, 131 Wn. App.             at   894. There is an exception to the work product


rule for records created during the ordinary course of business. In re Det. of West, 171 Wn.2d 383,

405, 256 P. 3d 302 ( 2011).        This exception prevents parties from exploiting the work product rule



                                                               7
No. 46467 -5 -II




by adopting routine practices whereby all documents appear to be prepared in anticipation of

litigation. Heidebrink, 104 Wn.2d at 400.


        The trial court concluded that three of the four paragraphs in the Clarno report were

prepared   in   anticipation of      litigation. Doehne does           not challenge   this   conclusion.   We question


whether paragraphs in a single document can be prepared for different purposes. Nevertheless, we


turn to Doehne' s argument that the Clamo report was prepared in the ordinary course of business

and thus is exempt from work product protection.


        To identify " ordinary course of business" documents, we look at the parties involved and

their expectations. Soter, 131 Wn. App. at 896; see also West, 171 Wn.2d at 405 ( test is whether,

in light of the document and the facts, the document can fairly be said to have been prepared or

obtained   because      of   the   prospect of   litigation). Here, Clarno prepared a report about Doehne' s


accident for distribution to the company' s risk management and legal departments. This document

would not       have been     prepared    but for Doehne'       s   injuries.   The lawyers' participation was not


merely incidental, and Empres' anticipation of potential litigation was reasonable. See Cleveland

Clinic Health Sys., 283 F. R.D.             at   369 (   plaintiffs'    anticipation of litigation was objectively

reasonable where patient was admitted to emergency room, was not fully connected to monitoring

system, and was found dead the next day).

        We conclude that the entire Clarno report was prepared in anticipation of litigation and that


the trial court abused its discretion in compelling the discovery of the final sentence of the first

paragraph,      which    clearly     constitutes   opinion    work      product.   And, as stated, the entire first




                                                              10
No. 46467 -5 -II



paragraph is protected from disclosure by the attorney-client privilege.

        We reverse the trial court' s order compelling discovery of this information.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040,


it is so ordered.




                                                                             h




                                                                           Lee, J.
 We concur:




                    Maxa, P' J.




                     Sutton, X




                                                 11
