                                                                       FILED
                                                               COURT OF APPEALS DIV I
                                                                STATE OF WASHINGTON
                                                                2018 NOV -5 AN 9:29



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

SAFE ACQUISITION, LLC, a               )          No. 77309-7-1
Washington corporation, LUCIDY,        )
LLC, a Washington corporation, and     )
SCOTT FONTAINE, an individual,         )
                                       )
                    Appellant,         )
                                       )
             v.                        )
                                       )
GF PROTECTION INC., d/b/a              )          UNPUBLISHED OPINION
Guardian Fall Protection, a Washington )
corporation,                           )          FILED: November 5, 2018
                                       )
                    Respondent.        )
                                       )

       VERELLEN, J. —A party asserting an attorney-client privilege bears the
burden of proving the existence of an attorney-client relationship. The absence of

findings of fact that an attorney-client relationship existed is deemed an adverse

finding to the party asserting the privilege. Here, the trial court concluded that

appellant SAFE Acquisition, LLC did not meet its burden of establishing the

attorney-client privilege applied to e-mails between its litigation counsel and the

two individuals who acted on behalf of both SAFE and respondent GF Protection

Inc.(GFP). In the absence of any findings that an attorney-client relationship

existed between the litigation counsel for SAFE and two individuals, there is no

reversible error.
No. 77309-7-1/2


       A party asserting the work product rule bears the burden of establishing the

documents or items in question were prepared in anticipation of litigation. SAFE

failed to offer anything more than the conclusory statement that all

communications between litigation counsel and the two individuals were "for the

purpose of advising and representing" SAFE.1 But the substance of the disputed

e-mails is unknown. And it is conceivable that some portion of the e-mails might

reveal litigation strategy or other information that constitutes an attorney's work

product. Accordingly, we remand to the trial court to conduct in camera review or

otherwise resolve whether any or all of the disputed e-mails are protected work

product.

                                       FACTS

       Scott Fontaine founded SAFE to develop and market his patented safety

inventions, including a safety device for roofers called the HitchClip. Starting in

2009, Fontaine asked his friend Mike Vasquez for help promoting the HitchClip. In

August 2013, SAFE contracted with GFP to manufacture, sell, and distribute its

patented inventions in exchange for a share of the proceeds. In March or April of

2014, Brock Bullard, another friend of Fontaine's, began working with SAFE. The

venture between SAFE and GFP did not go well, however, and by April 10, 2015,

SAFE's then-counsel threatened to sue GFP. Soon after, SAFE retained its

present counsel and filed suit against GFP for breach of contract, misappropriation

of trade secrets, and conversion.


       1 Clerk's Papers(CP)at 120.



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No. 77309-7-1/3



  .   On August 23, 2016, GFP served SAFE with requests for production of all

communications with Mike Vasquez and Brock Bullard "from December 2011 to

present. .. including but not limited to, COMMUNICATIONS regarding the present

lawsuit."2 SAFE refused the requests as to communications with litigation counsel

because they "ask[ed]for attorney-client communications and/or work product."3

      Almost one year later, GFP filed a motion to compel. The court granted the

motion and denied SAFE's motion for reconsideration. On September 15, 2017,

the court granted GFP's motion for monetary sanctions after SAFE continued to

resist production of the disputed materials.

      On September 19, 2017, a commissioner of this court granted a temporary

stay of the trial court's order levying sanctions pending a ruling on SAFE's motion

for discretionary review. On October 25, 2017, the commissioner denied review

and lifted the stay. A panel of this court granted SAFE's motion to modify the

commissioner's ruling denying interlocutory appeal and ordered the temporary

stay on sanctions continue pending appeal.

                                     ANALYSIS

       We review discovery orders for an abuse of discretion.4




       2 CP    at 18.
       3 Id.

       4 Cedell v. Farmers Ins. Co. of Wash., 176 Wn.2d 686, 694, 295 P.3d 239
(2013); see Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122
Wn.2d 299, 355, 858 P.2d 1054(1993)(holding that courts are "given wide
latitude" in managing sanctions for discovery violations).



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No. 77309-7-1/4



       Civil Rule(CR)26 governs discovery. The scope of discovery is broad.5

But privileged matters are generally not subject to discovery.6

Attorney-Client Privilege

       Attorney-client privilege is "'narrow" and "'protects only communications

and advice between attorney and client.'"7 When a corporation or limited liability

company is a client, the general rule is that the privilege may extend beyond the

"control group" of upper management to include some non-managerial employees

and other agents.°

       Whether an attorney-client relationship exists is a question of fact.° The

party invoking the privilege bears the burden of establishing an entitlement to it.1°

           Here, the court considered both parties' detailed arguments regarding

attorney-client privilege and concluded that SAFE failed to carry its burden in

invoking the privilege. The court did not enter any findings of fact resolving the

conflicting facts regarding Bullard and Vasquez's relationships with SAFE and

GFP.


       5 Cedell, 176 Wn.2d    at 695; see CR 26(b)(1)("Parties may obtain discovery
regarding any matter.").
       6 CR    26(b)(1).
       7Newman v. Highland Sch. Dist. No. 203, 186 Wn.2d 769, 777, 381 P.3d
1188(2016)(quoting Hangartner v. City of Seattle, 151 Wn.2d 439,452, 90 P.3d
26 (2004))(internal quotation marks omitted).
       8Id. at 781 n.3 (citing RESTATEMENT(THIRD) OF THE LAW GOVERNING
LAWYERS § 73 cmt. e); Youngs v. PeaceHealth, 179 Wn.2d 645, 650-51, 316 P.3d
1035 (2014).
      9 Dietz v. Doe, 131 Wn.2d 835, 844, 935 P.2d 611 (1997).

       10   Newman, 186 Wn.2d at 777; Dietz, 131 Wn.2d at 844.



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No. 77309-7-1/5


      SAFE relies on Fontaine's two identical "letters of intent"11 to Bullard and

Vasquez from July 21, 2014, to argue that Fontaine's friends are co-owners of

SAFE. The 2014 letters vaguely discuss an ownership percentage in Fontaine's

various companies:

      Thank you for the investment of your time this year with SAFE
      Acquisition, LLC. This letter will confirm the verbal agreement you
      and I made in early June. That agreement was in regards to
      ownership percentage.

       In order to address the ownership percentage amount we agreed
       upon was 10[percent] of SAFE Acquisitions LLC, 10[percent] of
       Lucidy LLC, 10 [percent] of Roofing Technologies LLC, and both
       patents associated with [the] LLC's.1121

Neither letter states when either friend took, or will take, his 10 percent stake in

Fontaine's companies.13

       Deposition testimony from Fontaine, Bullard, and Vasquez confuses rather

than clarifies. Vasquez testified he never was an owner, employee, or

independent contractor for SAFE. But he understood his ownership interest in

SAFE to be a future interest contingent on the company becoming profitable.

Similarly, Bullard testified his agreement with SAFE involved "what ownership I

would have in SAFE."14 Fontaine testified that Lucidy, LLC, has no owners or

investors other than himself.


       11 CP at 316.
       12 CP   at 152.
           addition, SAFE does not contend, and nothing in the record reflects,
       13 In
that SAFE satisfied the statutory requirements in RCW 25.15.116(2)for admitting
new members to a limited liability corporation.
       14   CP at 367(emphasis added).



                                           5
No. 77309-7-1/6


      SAFE offers alternative theories of agency and independent contractor

relationships. But it appears Vasquez and Bullard were working as paid

consultants or independent contractors for GFP while arguably prospective co-

owners, ostensible co-owners, or agents of SAFE. Vasquez testified that GFP

paid him $5,000 per month as a product consultant beginning October 1, 2013 to

train and support the sales staff. Fontaine, however, described Vasquez's role in

SAFE, beginning around July or August of 2013, as a "product consultant and

sales rep[resentative]."15 SAFE never paid royalties or a salary to Vasquez.

Bullard received over $1,000 in reimbursements from GFP in December 2014.

And despite Fontaine's description of Bullard as SAFE's general manager, SAFE

never paid royalties or a salary to Bullard.

       The court concluded that SAFE "failed to carry [its] burden in justifying their

assertion that documents to which [Bullard and Vasquez] are party may be

withheld on a claim of attorney-client privilege."16 The court did not make any

findings about Vasquez or Bullard's legal relationships with SAFE.

       The general rule is "absence of a finding of fact on an issue is

'presumptively a negative finding against the person with the burden of proof.'"17

An exception to the negative finding rule applies where "there is ample



       15 CP   at 93.
       16   CP at 107.
       17Morgan v. Briney, 200 Wn. App. 380, 390-91, 403 P.3d 86(2017)
(quoting Taplett v. Khela, 60 Wn. App. 751, 759, 807 P.2d 885 (1991)), review
denied, 190 Wn.2d 1023(2018).



                                          6
No. 77309-7-1/7



evidence to support the missing finding, and the findings entered by the court,

viewed as a whole, demonstrate that the absence of the specific finding was not

intentional."18

       In this case, it is appropriate to infer a negative finding against SAFE

regarding attorney-client privilege. The record contains conflicting and confused

evidence whether Vasquez and Bullard are co-owners, prospective co-owners, or

agents of SAFE. In addition, the order's silence does not seem an inadvertent

oversight to enter findings in support of an attorney-client relationship because the

court expressly concluded that SAFE failed to carry its burden.

       SAFE contends that the absence of findings of fact and the presence of

documentary evidence means we should engage in de novo review of whether

there was an attorney-client relationship. But the cases relied upon by SAFE

apply only where there is undisputed evidence or the material evidence is all

contained in documents in the record.18 Because the evidence about Bullard and



      18 Douglas Nw., Inc. v. Bill O'Brien & Sons Constr., Inc., 64 Wn. App.661,
682, 828 P.2d 565(1992).
        18 For example, SAFE relies on In re Firestorm 1991, 129 Wn.2d 130, 135,
916 P.2d 411 (1996), to contend that de novo review is appropriate when the only
evidence consists of written documents and the trial court makes no specific
factual findings. But in Firestorm and the supporting cases cited by SAFE,
appellate de novo review of a fact question depends on the evidence actually
being before the reviewing court. Morgan v. City of Federal Way, 166 Wn.2d 747,
755-57, 213 P.3d 596(2009)(report sought in a Public Records Act request was
in the court record with related documents); Firestorm, 129 Wn.2d at 153-54
(contents of witness interview at issue on appeal were known to the court)
(Madsen, J. concurring); Bryant v. Joseph Tree, Inc, 119 Wn.2d 210, 222, 829
P.2d 1099(1992)(legally dispositive documents were all in the court record).



                                          7
No. 77309-7-1/8


Vasquez is disputed, includes deposition testimony, and the e-mails' contents are

unknown, de novo review is not warranted or practical.

       Because SAFE failed to satisfy its burden of establishing the existence of

an attorney-client relationship that extends to Vasquez and Bullard, the trial court

did not abuse its discretion.

Work Product

       The court also concluded that the work product rule did not prevent

discovery of Vasquez and Bullard's communications with SAFE's litigation

counsel. Civil Rule 26(b)(4) excludes from discovery materials "prepared in

anticipation of litigation or for trial."20 Strong public policy also favors shielding

genuine work product from discovery.21 In Heidebrink v. Moriwaki, our Supreme

Court defined the scope and purpose of the rule, concluding "[it] should provide

protection when such protection comports with the underlying rationale of the rule

to allow broad discovery, while maintaining certain restraints on bad faith,

irrelevant and privileged inquiries in order to ensure just and fair resolutions of

disputes."22



       20   Harris v. Drake, 152 Wn.2d 480, 486, 99 P.3d 872(2004).
       21 Upjohn Co. v. United States, 449 U.S. 383, 398, 101 S. Ct. 677,66 L. Ed.
2d 584 (1981); see Soter v. Cowles Pub. Co., 162 Wn.2d 716, 741, 174 P.3d 60
(2007)("Only in rare circumstances, for example, when the attorney's mental
impressions are directly at issue, can an attorney or legal team member's notes
reflecting oral communications be revealed.")
      22 104 Wn.2d 392, 400, 706 P.2d 212(1985). Heidebrink refers to
CR 26(b)(3) when discussing work product because the rule was renumbered in
1990. Harris, 152 Wn.2d at 486 n.1.
No. 77309-7-1/9


        Whether material should be shielded as work product by CR 26(b)(4) is a

two-step mixed question of law and fact.23 First, the court must consider whether

the party opposing discovery established that the materials were prepared in

anticipation of litigation and qualify as work product.24 A court must"examin[e]the

specific parties and their expectations" when determining whether one party

prepared materials in anticipation of litigation.25

       Second, if the party opposing discovery meets its burden of production,

then the party seeking discovery bears the burden of persuading the court that it

"has substantial need of the materials" and cannot obtain them without "undue

hardship."26

       The instant case presents unusual circumstances because the court had

little evidence before it when examining the parties' expectations. Nothing before

the court described the general or specific contents of the disputed e-mails or even

the number of e-mails at issue. SAFE's only offering was a conclusory declaration

from its litigation counsel stating, "All of my communications with [Vasquez and




       23 Soter  v. Cowles Publ'a Co., 131 Wn. App. 882, 891, 130 P.3d 840
(2006), aff'd, 162 Wn.2d 716(2007); see Harris, 152 Wn.2d at 492(applying
abuse of discretion standard in affirming trial court's exclusion of evidence on the
basis of work product protections).
       24 S    CR 26(b)(4)(only materials "prepared in anticipation of litigation" are
shielded by the rule).
       25 Kittitas County v. Allphin, 190 Wn.2d 691, 704, 416 P.3d 1232(2018)
(quoting Harris, 152 Wn.2d at 487).
       26   CR 26(b)(4).



                                            9
No. 77309-7-1/10


Bullard] relating to the subject matter of this case have been for the purpose of

advising and representing" SAFE.27

       A court must have more than mere recitations of the definition of work

product or other "work product terms and catchphrases" when determining

whether materials were prepared in anticipation of litigation.28 The party invoking

the work product rule bears the burden of production and must provide more than

a conclusory statement that the materials relate to litigation.29 As in Kittitas County

v. Allphin,3° Leahy v. State Farm,31 and In re Detention of West,32 the usual course


       27 CP   at 120.
        28 Estate of Dempsey ex rel. Smith v. Spokane Wash. Hosp. Co. LLC, 1
Wn. App. 2d 628, 639,406 P.3d 1162(2017)("An attorney's use of attorney work
product terms and catchphrases in a letter to a testifying expert does not shield the
letter from disclosure."), review denied, 190 Wn.2d 1012(2018).
       29 See, e.g., Binks Mfg. Co. v. Nat'l Presto Indus., Inc., 709 F.2d 1109, 1118
(7th Cir. 1983)("It is axiomatic that in order to invoke the protection of the work
product privilege, one must show that the materials sought to be protected were
prepared 'in anticipation of litigation.")(quoting Fed. R. Civ. P. 26(b)(3)); United
States v. 22.80 Acres of Land, 107 F.R.D. 20, 22(N.D. Cal. 1985)(finding that the
work product rule did not apply to a statement by litigation counsel that was
unsupported by "any citation of data, case law, or other authority" and "remains a
bald, unsupported assertion"). We note that CR 26(b)(4) is "nearly identical" to
Fed. R. Civ. P. 26(b)(3) and that analyses of the federal rule provide persuasive
guidance about the comparable state rule. Soter, 162 Wn.2d at 739. Binks and
22.80 Acres of Land are helpful because they predate the 1993 amendment
adding Fed. R. Civ. P. 26(b)(5)(A)(ii) to require that the party invoking any privilege
"describe the nature of the documents" to "enable other parties to assess the
claim," a provision not contained in the Washington rule. See Amendments to
Federal Rules of Civil Procedure, Rule 26(b)(5) & comm. note, 146 F.R.D. 401,
617,639-40 (1993).
       39 190 Wn.2d at 699 (materials provided for in camera review).

       313 Wn. App. 2d 613, 622, 418 P.3d 175(2018)(defendant insurer raised
work product rule and provided redacted materials and a privilege log of the
materials sought).



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No. 77309-7-1/11


would have had the party invoking the rule provide enough information to let the

court evaluate the claim.

       One means of providing adequate information is a privilege log.33

       In camera review is also an appropriate option when a party invokes a

privilege and the court does not know the nature or contents of the withheld

documents. In Limstrom v. Ladenburq,34 our Supreme Court considered whether

the work product rule applied to the Public Records Act, chapter 42.17 RCW

(PRA). After determining the work product rule could shield materials requested

pursuant to the PRA, the court remanded for further consideration of the record

request.35 "[B]ecause the documents requested were not viewed by the trial court,

and are not included in the record," the court was "unable to completely resolve

the matter before" it.36 The total lack of relevant documents in the record

prevented the court from determining whether any documents were protected from


      32 171 Wn.2d 383, 393-96, 405-06, 256 P.3d 302(2011)(affirming finding of
work product when the court had several examples of materials sought).
        33 SAFE and GFP have argued extensively about whether the court's order
compelling production required that SAFE provide a privilege log for all
communications, including those at issue here. But GFP's motion to compel was
imited to "a complete privilege log that includes all communications with counsel
withheld on the basis of privilege up until April 10, 2015." CP at 28(emphasis
added). Although the eventual order, which was drafted by GFP's attorneys,
recited that SAFE produce a privilege log "for all documents withheld in this case,"
OP at 108, it seems doubtful that the trial court intended to grant relief not
requested by GFP. SAFE complied with the order by providing a privilege log of
all withheld documents predating April 10, 2015.
       34   136 Wn.2d 595, 963 P.2d 869 (1998).
       35   Id. at 612-13.
       36   Id. at 612.




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No. 77309-7-1/12



disclosure in any way.37 The court concluded that remand was appropriate

because it was "conceivable" that materials sought could "show litigation

strategy. . . that constitutes an attorney's work product."38

       Consistent with our Supreme Court's holding in Limstrom, we conclude the

best course is remand for the trial court to exercise its discretion in considering

whether to conduct in camera review or another reasonable alternative.

Sanctions

       Finally, SAFE contends it should not be subject to any sanctions accrued

during the pendency of this appeal. The court found that SAFE "willfully refused to

comply"39 with past orders and imposed a fine of $200 per day payable to GFP,

starting September 15, 2017, for each day SAFE did not comply. The court also

awarded GFP fees and expenses for bringing the motion to compel.

       Commissioner Kanazawa stayed the sanctions order on September 19,

2017, and later lifted that stay when she denied discretionary review on October

25, 2017. Commissioner Neel stayed the sanctions order again on December 27,

2017, and a panel of this court later continued that stay. Because 66 days

elapsed while the trial court's sanctions order was not stayed, SAFE faces over

$13,000 in sanctions payable to GFP and an undetermined amount for fees and

expenses from litigating the motion to compel.



       37   Id. at 615.
       38   Id.
       39 CP      at 254.



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No. 77309-7-1/13


       Trial courts have "wide latitude" in imposing sanctions for discovery

violations.40 Accordingly, court orders sanctioning discovery violations are

reviewed for abuse of discretion.41 But, sanctions accrued during a good faith

appeal of attorney-client privilege and work product issues should be vacated.42

       We conclude that any sanctions accruing during this good faith appeal

should be vacated.

       GFP suggests that the issue is not properly before us on appeal because

SAFE did not include the court's sanction order in its notice for discretionary

review.

       RAP 2.4(b) allows review of an order not designated in the notice for

discretionary review when two requirements are met: "(1) the order or ruling

prejudicially affects the decision designated in the notice, and (2)the order is



       40   Fisons, 122 Wn.2d at 355.
       41 Amy v. Kmart of Wash. LLC, 153 Wn. App. 846, 855, 223 P.3d 1247
(2009)(citing id. at 338).
       42 State v. Rogers, 3 Wn. App. 2d 1, 10, 414 P.3d 1143(2018)(citing
Seventh Elect Church in Israel v. Rogers, 102 Wn.2d 527, 536-37, 688 P.2d 506
(1984)("When an attorney makes a claim of privilege in good faith, the proper
course is for the trial court to stay all sanctions for contempt pending appellate
review of the issue.")), review denied, 190 Wn.2d 1032(2018); see Dike v. Dike,
75 Wn.2d 1, 16, 448 P.2d 490(1968)("An attorney is entitled to consideration of a
claimed privilege not to disclose information which he honestly regards as
confidential and should not stand in danger of imprisonment for asserting what he
respectfully considers to be lawful rights."(quoting Appeal of the United States
Sec. & Exch. Comm'n,226 F.2d 501, 520 (6th Cir. 1955))); Seattle Nw. Sec. Corp.
v. SDG Holding Co., Inc., 61 Wn. App. 725, 734, 812 P.2d 488(1991)("because
of the importance of protecting attorney-client privilege and the difficulty in
determining when it applies, ... a contempt judgment and its related sanctions
could be overturned" if the privilege were later ruled inapplicable).



                                          13
No. 77309-7-1/14



entered... before the appellate court accepts review."

       Because the order imposing daily sanctions would not have occurred but for

the court's earlier order compelling discovery, the imposition of sanctions

prejudicially affects the order compelling discovery.43 And because the order

imposing sanctions was entered after SAFE filed its notice of discretionary review,

both requirements of RAP 2.4(b) are satisfied. This appeal properly extends to the

sanctions incurred pending appeal.

       Accordingly, we affirm the trial court's determination that SAFE did not meet

its burden of proving the existence of an attorney-client relationship. As to the

claim of work product, we remand for further proceedings consistent with this

opinion. Sanctions pending appeal should be vacated.




WE CONCUR:



             _J




       43 COX v. Kroger Co., 2 Wn. App. 2d 395, 407, 409 P.3d 1191 (2018)("Our
Supreme Court has interpreted the term 'prejudicially affects' to turn on whether
the order designated in the notice of appeal would have occurred absent the other
order.").



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