                                                            FILED
                                                        DECEMBER 14, 2017
                                                     In the Office of the Clerk of Court
                                                    WA State Court of Appeals, Division III




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

ESTATE OF MICHAEL DEMPSEY by                  )         No. 34573-4-111
and through its Personal Representative,      )
ELLEN SMITH, and ELLEN SMITH,                 )
                                              )
                     Petitioners,             )
                                              )
              V.                              )
                                              )
Spokane Washington Hospital Company           )
LLC d/b/a DEACONESS MEDICAL                   )
CENTER, ROCKWOOD CLINIC and                   )         PUBLISHED OPINION
Michael Wukelic, M.D.,                        )
                                              )
                   , Respondents,             )
                                              )
APOGEE PHYSICIANS a.k.a. Apogee               )
Medical Group, Washington, P.C.,              )
                                              )
                     Defendant.               )

       LAWRENCE-BERREY, J. -Two issues are before us. The first issue is whether an

attorney may assert attorney work product protections over documents the attorney

prepared and sent to a testifying expert. We answer that the attorney may, but that

attorney work product protections are waived to the extent the attorney provided facts to

the testifying expert to serve as the bases for that expert's opinions. The second issue
No. 34573-4-III
In re Estate ofDempsey


concerns whether a testifying expert's draft opinions are discoverable or whether they are

protected by expert witness work product protections. We answer that draft opinions are

subject to testifying expert work product protections and are not discoverable.

      We reverse the trial court's order and remand to the special discovery master for

an in camera review consistent with this opinion.

                                      PROCEDURE

      In 2014, Ellen Smith, both personally and as personal representative for the Estate

of Michael Dempsey, filed suit alleging medical negligence against Deaconess,

Rockwood Clinic, and Dr. Michael Wukelic. In late 2015, the trial court appointed a

special discovery master to hear and rule on discovery disputes.

      The plaintiffs retained medical expert Dr. Steven Simons to testify on their behalf

at trial. Counsel for Dr. Wukelic issued a subpoena duces tecum to Dr. Simons. The

subpoena duces tecum requested Dr. Simons to produce for his deposition "[a]ll letters or

correspondence, either written or electronic, whether received or sent by you, concerning

Michael Dempsey which are not otherwise part of the record and chart." Clerk's Papers

(CP) at 78. The request specifically included production of any and all records received

from any source, "including plaintiffs' counsel." Id. The subpoena duces tecum further

demanded "[a]ny and all notes, memos, either written or electronic, which you have made


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while performing work on this case. This is meant to include handwritten notes

concerning conversations with ... plaintiffs' counsel .... " Id.

       Plaintiffs objected to the subpoena on multiple grounds, including work product.

In tum, Dr. Wukelic filed a motion to compel production and to overrule the plaintiffs'

objections. The plaintiffs responded with a countermotion, requesting the special

discovery master to quash the subpoena as prohibitively broad. Prior to filing their

motions, the parties did not engage in a CR 26(i) conference.

       The special discovery master issued an order requiring plaintiffs to provide him all

documents sought by Dr. Wukelic that were not previously disclosed so he could review

the documents in camera. In addition, the special discovery master ordered plaintiffs to

submit to him a privilege log describing those documents they contend are privileged

together with a description of the privilege asserted. Although the order appeared to

protect privileged documents from disclosure, the order itself stated that no privileges

were available to plaintiffs. In the order, the special discovery master found:

       [T]here is no attorney-client privilege between plaintiffs' counsel and Dr.
       Simons that would protect from disclosure documents ... exchanged
       between plaintiffs' counsel and Dr. Simons, and that plaintiffs' claim of a
       "work product" privilege protecting communications between plaintiffs'
       counsel and Dr. Simons is inapplicable in that Dr. Simons is a testifying
       expert.




                                             3
No. 34573-4-111
In re Estate ofDempsey


CP at 189.

       Plaintiffs sought review by the trial court of the special discovery master's order.

The trial court affirmed the special discovery master's order. Plaintiffs then requested

discretionary review, and a panel of this court granted their request.

                                   LAW AND ANALYSIS

       This court reviews a trial court's ruling on a discovery motion for an abuse of

discretion. Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299,

339-40, 858 P .2d 1054 (1993). "A trial court abuses its discretion when its order is

manifestly unreasonable or based on untenable grounds." Id. at 339. "A trial court would

necessarily abuse its discretion if it based its ruling on an erroneous view of the law." Id.

A.     FEDERAL INTERPRETATIONS OF WORK PRODUCT PROTECTIONS DO NOT GUIDE OUR
       DECISION


       Both parties urge us to be guided by federal interpretations of work product

protections under FED. R. CIV. P. 26(b)(4). FED. R. CIV. P. 26(b)(4)(B) 1 explicitly

protects draft reports of testifying expert witnesses from disclosure. FED. R. CIV. P.




       1
                                               "Trial-Preparation Protection/or Draft
           FED. R. CIV. P. 26(b)(4)(B) provides:
Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or
disclosure required under Rule 26(a)(2), regardless of the form in which the draft is
recorded."

                                               4
No. 34573-4-111
In re Estate ofDempsey


26(b )(4 )( C)2 explicitly protects some disclosures of attorney work product sent to a

testifying expert witness. We reject the parties' requests to be guided by federal

interpretations.

       Where a state rule parallels a federal rule, analysis of the federal rule may be

looked to for guidance in interpreting the state rule. Beal v. City ofSeattle, 134 Wn.2d

769, 777, 954 P.2d 237 (1998). But "[a]ny party asking us to adopt the federal

interpretation of a rule bears the burden of overcoming our reluctance to reform rules

practice through judicial interpretation rather than rule making." Washburn v. City of

Federal Way, 178 Wn.2d 732, 750, 310 P.3d 1275 (2013).

       Nothing in CR 26(b) is similar to the explicit work product protections found in

the federal rules. For us to adopt federal interpretations of the federal civil rules, we




       2
         FED. R. CIV. P. 26(b)(4)(C) provides: "Trial-Preparation Protection for
Communications Between a Party's Attorney and Expert Witnesses. Rules 26(b)(3)(A)
and (B) protect communications between the party's attorney and any witness required to
provide a report under Rule 26(a)(2)(B), regardless of the form of the communications,
except to the extent that the communications: (i) relate to compensation for the expert's
study or testimony; (ii) identify facts or data that the party's attorney provided and that the
expert considered in forming the opinions to be expressed; or (iii) identify assumptions
that the party's attorney provided and that the expert relied on in forming the opinions to
be expressed."

                                              5
No. 34573-4-111
In re Estate ofDempsey


would be reforming our rule practice through judicial interpretation rather than rule

making. We refuse to do this. 3

B.     CR 26(b)(4) APPLIES TO ATTORNEY WORK PRODUCT IN THE POSSESSION OF A
       TESTIFYING EXPERT


       We first review the mechanism by which the civil rules permit one party to request

documents from another party's expert witness and the mechanism by which an objection

may be lodged. CR 26(b) provides:

               (5) Trial Preparation: Experts. Discovery of facts known and
       opinions held by experts, otherwise discoverable under the provisions of
       subsection (b )( 1) of this rule and acquired or developed in anticipation of
       litigation or for trial, may be obtained only as follows:
               (A)(i) A party may through interrogatories require any other party to
       identify each person whom the other party expects to call as an expert
       witness at trial, to state the subject matter on which the expert is expected to
       testify, to state the substance of the facts and opinions to which the expert is
       expected to testify and a summary of the grounds for each opinion, and to
       state such other information about the expert as may be discoverable under
       these rules. (ii) A party may, subject to the provisions of this rule and of
       rules 30 and 31, depose each person whom any other party expects to call as
       an expert witness at trial.




       3To the extent the dissent asserts public policy arguments to reach a result
inconsistent with CR 26(b )(4) and CR 26(b )( 5), the dissent would reform rule practice
through judicial interpretation rather than through rule making.

                                              6
No. 34573-4-III
In re Estate ofDempsey


       CR 30 governs depositions on oral examination, and CR 31 governs depositions on

written questions. Nothing in those rules discuss the scope of a subpoena duces tecum

issued to a testifying expert. We, therefore, look to other rules.

       Under CR 45, an attorney of record may subpoena a nonparty to a deposition and

require such person to produce documents. CR 45(a)(3)-(4). Any party opposing a

subpoena may bring a motion to quash or modify the subpoena for various reasons,

including if the subpoena "requires disclosure of privileged or other protected matter and

no exception or waiver applies." CR 45(c)(3)(A)(iii). Here, plaintiffs contend that the

subpoena requires disclosure of both attorney and expert witness work product.

       We next briefly review how attorney work product protections arose and how

those protections have been preserved in our state civil rules:

               The attorney work product doctrine first appears in Hickman v.
       Taylor[, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947)]. It is intended
       to preserve a zone of privacy in which a lawyer can prepare and develop
       legal theories and strategy with an eye toward litigation, free from
       unnecessary intrusion by his adversaries. The Hickman doctrine is now
       codified in [our] civil rules at ... CR 26(b)(4).

Soter v. Cowles Publ'g Co., 131 Wn. App. 882,893, 130 P.3d 840 (2006) (footnote

omitted) (internal quotation marks and citations omitted), aff'd, 162 Wn.2d 716, 174 P.3d

60 (2007).

       CR 26(b )(4) provides in relevant part:

                                              7
No. 34573-4-111
In re Estate ofDempsey


       Trial Preparation: Materials. Subject to the provisions of subsection (b )( 5)
       of this rule, a party may obtain discovery of documents and tangible things
       otherwise discoverable under subsection (b)(l) of this rule and prepared ...
       for trial by or for another party or by or for that other party's representative
       (including a party's attorney, consultant, surety, indemnitor, insurer, or
       agent) only upon a showing that the party seeking discovery has substantial
       need of the materials in the preparation of such party's case and that the
       party is unable without undue hardship to obtain the substantial equivalent
       of the materials by other means. In ordering discovery of such materials
       when the required showing has been made, the court shall protect against
       disclosure of the mental impressions, conclusions, opinions, or legal
       theories of an attorney or other representative of a party concerning the
       litigation.

       We note that CR 26(b)(5), not CR 26(b)(4), controls the scope of protections for

an expert witness's work product. In re Firestorm 1991, 129 Wn.2d 130, 137,916 P.2d

411 (1996). But to the extent an attorney seeks protection for his or her own work

product, CR 26(b)(4) controls. In re Det. of West, 171 Wn.2d 383,407, 256 P.3d 302

(2011). 4



       4
         The dissent fails to recognize that CR 26(b )(4) governs attorney work product
while CR 26(b)(5) governs expert witness work product. The dissent's failure to
recognize this allows it to conflate the two rules and declare that CR 26(b)(5) supersedes
CR 26(b)(4). Not so.
       A document prepared by an attorney is susceptible to attorney work product
protection under CR 26(b)(4). Whereas a document prepared by an expert witness is
susceptible to expert witness work product under CR 26(b)(5). It is, therefore, important
to recognize whether a document is prepared by an attorney or by an expert witness when
analyzing the differing protections under these rules. The dissent' s failure to do this
allows it to improperly conclude, based on CR 26(b )(5), that all attorney prepared
documents provided to a testifying expert witness must be disclosed.

                                              8
No. 34573-4-111
In re Estate ofDempsey


       Dr. Wukelic is seeking documents that plaintiffs' counsel contends he prepared

under CR 26(b)(4). However, Dr. Wukelic does not attempt to obtain disclosure of

plaintiffs' work product under the stringent standards of CR 26(b)(4). Thus, Dr. Wukelic

can only show entitlement to the materials under a theory of waiver.

C.     PLAINTIFFS PARTIALLY WAIVED ATTORNEY WORK PRODUCT PROTECTIONS


       "The doctrine of waiver ordinarily applies to all rights or privileges to
       which a person is legally entitled. A waiver is the intentional and voluntary
       relinquishment of a known right, or such conduct as warrants an inference
       of the relinquishment of such right."

Schroeder v. Excelsior Mgmt. Grp. LLC, 177 Wn.2d 94, 106, 297 P.3d 677 (2013)

(quoting Bowman v. Webster, 44 Wn.2d 667,669,269 P.2d 960 (1954)). We, therefore,

inquire under what circumstances we may infer that an attorney who forwards work

product documents to a testifying expert witness has relinquished work product

protection. 5




       5 Dr. Wukelic cites In re Firestorm 1991, 129 Wn.2d 130 and Limstrom v.
Ladenburg, 110 Wn. App. 133, 39 P.3d 351 (2002) for the proposition that the attorney
work product privilege is waived by sharing a protected document with a third person
outside of the attorney-client privilege. We disagree.
       In re Firestorm does not discuss waiver of the attorney work product privilege.
Limstrom states the rule that an attorney's intentional disclosure of documents to an
adversary generally results in a waiver of the work product privilege. Id. at 145. Here,
plaintiffs' counsel did not disclose protected documents to an adversary.

                                            9
No. 34573-4-III
In re Estate ofDempsey


       It is common for an attorney to provide a testifying expert a written factual

summary and supporting materials that serve as a foundation for the expert's trial

testimony. The attorney anticipates that the expert witness will rely on these facts and to

also testify that these facts are the bases of his or her opinions. Proper examination of the

expert witness requires an opposing attorney to know the facts relied on by the expert

witness. CR 26(b)(5)(A)(i) requires disclosure of these facts. But the disclosure by

interrogatory answers often lacks factual detail. Because disclosure of such facts is

required, it is consistent with our civil rules that the opposing attorney have a mechanism

by which the factual details can be discovered. But more germane to the issue of waiver,

because an attorney knows that disclosure of such facts to the opposing party is required

by CR(b)(5)(A)(i), we may infer that the attorney relinquished attorney work product

protections by intentionally submitting factual materials to a testifying expert.

       The dissent asserts that the prevailing view under federal law, until the 2010

amendments to FED. R. CIV. P. 26, was that disclosure of attorney work product to a

party's testifying expert worked a broader waiver than the rule we adopt here. We find

this unremarkable, given that former FED. R. CIV. P. 26(a)(2)(B) (2007) explicitly

required a party to disclose to an adverse party all "data or other information" considered

by an expert. CR 26(b)(5)(A)(i) uses narrower language. It requires a party to disclosure


                                             10
No. 34573-4-111
In re Estate ofDempsey


"the substance of the facts and the opinions to which the expert is expected to testify."

The dissent explicitly chooses to ignore this difference and, by doing so, would achieve

through judicial rule making what is not achievable through the rules themselves.

       The dissent also submits a hypothetical letter from an attorney to a testifying

expert. In that letter the attorney expresses his mental impressions, opinions, and legal

theories, and then suggests what opinions the testifying expert should express. We agree

with the dissent that the hypothetical letter should be disclosed, but we disagree on the

legal basis for this result.

               Because [a] privilege sometimes results in the exclusion of evidence
       otherwise relevant and material, and may thus be contrary to the philosophy
       that justice can be achieved only with the fullest disclosure of the facts, [a]
       privilege is not absolute; rather, it is limited to the purpose for which it
       exists.

Dietz v. Doe, 131 Wn.2d 835, 843, 935 P.2d 611 (1997) (discussing the scope of the

attorney-client privilege). 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. In

the case of the hypothetical letter, to the extent the letter seeks to improperly direct the

expert's opinions, no purpose justifies extending work product protections to it.




                                              11
No. 34573-4-111
In re Estate ofDempsey


       We have not been provided the documents for which plaintiffs seek work product

protection. We, therefore, are unable to definitively make a ruling. That ruling must be

made in the first instance by the special discovery master.

       In making its ruling, the special discovery master must determine which

documents or portions thereof contain factual information for Dr. Simons to rely on in his

testimony and which documents or portions thereof contain plaintiffs' counsel's mental

impressions, conclusions, opinions, or legal theories. The latter type of disclosures are

subject to heightened protection under CR 26(b )(4 ). See Soter, 131 Wn. App. at 893-94;

see also Christa L. Klopfenstein, Discoverability of Opinion Work Product Materials

Provided to Testifying Experts, 32 IND. L. REV. 481, 506-07 (1999) (endorsing a

"protection-oriented approach" that would "allow the attorney and the expert to engage in

free, creative discussions without requiring that they then tum over the fruits of those

discussions to the opposing party"). 6




       6
         Such free and creative discussions might include asking one's expert (1) to assess
the strengths and weaknesses of the expert's own opinions, or (2) to assess the strengths
and weaknesses of an adverse expert's opinion, or (3) an opinion on a settlement offer. If
such legitimate discussions were not protected, parties would be required to hire both a
testifying expert and a consulting expert, and the cost of litigation would further increase.

                                             12
No. 34573-4-111
In re Estate ofDempsey


D.     WAIVER OF A TESTIFYING EXPERT WITNESS'S WORK PRODUCT PROTECTIONS


       As mentioned previously, CR 26(b )(5)(A) defines the scope of discovery and work

product protections for a testifying expert witness. That rule expressly limits written

discovery to (1) the identity of the testifying expert, (2) the subject matter on which the

expert is expected to testify, (3) the substance of the facts and opinions to which the

expert is expected to testify and a summary of the grounds for each opinion, and (4) any

other information about the expert as may be discoverable under these rules. See West,

171 Wn.2d at 404 (contrasting the broader scope of discovery applicable to testifying

experts under CR 26(b )(5)(A) with the narrower scope of discovery applicable to

nontestifying experts under CR 26(b)(5)(B)).

       To the extent Dr. Simons prepared written opinions, expected to testify about those

opinions, and disclosed those opinions to plaintiffs' counsel, we presume that Dr. Simons

knew that plaintiffs' counsel must disclose those opinions to opposing counsel. From

this, we may infer that Dr. Simons relinquished work product protections to such written

opinions, and they are discoverable. But to the extent Dr. Simons prepared draft

opinions, because he will not testify about draft opinions, we cannot infer that he waived

work product protections to those draft opinions, and they are not discoverable.




                                             13
No. 34573-4-111
In re Estate ofDempsey


E.     ATTORNEY FEES


       Plaintiffs request that we award fees on appeal pursuant to RAP 18.1 and that we

direct the lower court to award fees. Plaintiffs argue they are entitled to reasonable

attorney fees under CR 37(a)(4) and CR 45(c)(l).

       An award under CR 37(a)(4) is limited to those types of discovery abuses

described by CR 37(a)(2). Those types of discovery abuses do not include issuance of an

improperly broad subpoena duces tecum to a nonparty under CR 45.

       Under CR 45(c)(l), an attorney responsible for issuing and serving a subpoena

must take reasonable steps to avoid imposing undue burden and expense on a person

subject to that subpoena. Further, a court shall enforce this duty and impose on the party

or the attorney in breach of this duty an appropriate sanction, including but not limited to

lost earnings and reasonable attorney fees. Here, Dr. Simons is the person subject to the

subpoena in question. Plaintiffs do not contend Dr. Simons incurred any attorney fees or

lost wages in responding to the subpoena. We, therefore, reject plaintiffs' request for

reasonable attorney fees on appeal and below.

                                      CONCLUSION

       We direct plaintiffs to provide to the special discovery master the documents and

the privilege log described in his order. We further direct the special discovery master to



                                             14
No. 34573-4-III
In re Estate ofDempsey


conduct an in camera review of those documents to determine which documents may be

withheld or redacted consistent with this opinion.




I CONCUR:




Pennell, J.




                                             15
                                      No. 34573-4-III

       FEARING, CJ. -    (dissent)

              The impact of expert witnesses on modern-day litigation cannot be
       overstated; yet, to some, they are nothing more than willing musical
       instruments upon which manipulative counsel can play whatever tune
       desired. Kam v. Ingersoll Rand, 168 F.R.D. 633, 639 (ND. Ind. 1996).

       I humbly, but dutifully, dissent. Dr. Michael Wukelic deserves to discover all and

complete communications between the Estate of Michael Dempsey's (Estate) testifying

expert, Dr. Steven Simons, and the Estate's counsel. Counsel's sharing of her thoughts

and strategies with a testifying witness waives the attorney work product doctrine for not

only facts supplied, but also opinions and impressions. I would affirm the trial court.

      As noted by the majority, the Estate of Michael Dempsey retained medical expert

Dr. Steven Simons to testify on its behalf at trial. Counsel for Dr. Michael Wukelic

issued a subpoena duces tecum, along with a deposition notice, to Dr. Simons. The

subpoena requested that Dr. Simons deliver a copy of all records to a deposition,

including all communications and correspondence between Dr. Simons and the Estate's

counsel. The subpoena read in part:
No. 34573-4-III
In re Estate ofDempsey (dissent)


               2. All letters or correspondence, either written or electronic, whether
        received or sent by you, concerning Michael Dempsey which are not
        otherwise part of the record and chart.

Clerk's Papers (CP) at 78. The Estate objected to the subpoena duces tecum on the

ground that the request sought confidential and attorney work product privileged

information.

        The discovery master issued an order compelling production of all documents

requested in Dr. Wukelic's motion and denying the Estate's motion to quash. The master

reasoned that no attorney-client privilege existed between the Estate's counsel and its

expert, Dr. Simons, and the attorney work product doctrine provided no protection since

Dempsey intended Simons to testify at trial. The master entered an order that read in

part:

                ... [T]he Court ... finds that there is no attorney-client privilege
        between plaintiffs' counsel and Dr. Simons that would protect from
        disclosure documents, either paper or digital, that have been exchanged
        between plaintiffs' counsel and Dr. Simons, and that plaintiffs' claim of a
        "work product" privilege protecting communications between plaintiffs'
        counsel and Dr. Simons is inapplicable in that Dr. Simons is a testifying
        expert ....

                ACCORDINGLY, the Court ... grants the defendant Rockwood
        Clinic's and Dr. Wukelic's Motion to Compel and requires production by
        plaintiffs' counsel and/or Dr. Simons of all letters or correspondence, either
        written or electronic, sent to or received from Dr. Simons by plaintiffs'
        counsel concerning Michael Dempsey.
                The Court further orders production of any and all notes, memos,
        either written or electronic, prepared by Dr. Simons while performing work
        on this matter to include handwritten notes concerning conversations with
        plaintiffs, plaintiffs' counsel, or other healthcare providers or review of

                                              2
No. 34573-4-III
In re Estate ofDempsey (dissent)


       records, tax records, school records and any other literature pertinent to the
       case.
              The Court further Orders production of all billing information in the
       possession of Dr. Simons or sent by Dr. Simons concerning Dr. Simons'
       work performed as an expert in the instant lawsuit

               Finally, the Court orders plaintiffs to prepare and to serve and file a
       privilege log delineating specifically all letters, correspondence or other
       documents, either written or electronic, whether received or sent by Dr.
       Simons concerning Michael Dempsey to include the date of each such
       described communication, the author thereof: as well as a list delineating
       each and every document, not previously disclosed, which plaintiffs claim
       is protected by any privilege which delineation should include the date of
       such document, the author of such document, and the type of privilege
       being asserted for each document identified.

CP at 188-90.

       The Estate asked the superior court judge to review the special discovery master's

order. The trial court affirmed the master. The court order reads, in relevant part: the

court "AFFIRMS, in all respects, the ... Order of the Discovery Master." CP at 295.

We accepted discretionary review of the trial court's order to address the sole question of

whether Dr. Steven Simons must deliver, at his deposition, correspondence with the

Estate's counsel.

       I should first determine the parameters of the question presented to us. On appeal,

the Estate of Michael Dempsey refers to the subpoena duces tecum directed at Dr. Steven

Simons as violating the attorney-expert communication privilege. Nevertheless, the

Estate cites no authority that recognizes such a communication privilege outside the

context of the attorney work product doctrine, and the Estate cites no authority declaring

                                              3
No. 34573-4-III
In re Estate ofDempsey (dissent)


that an attorney-expert communication privilege blooms from the attorney-client

privilege.   FED.   R. CIV. P. 26(b)(4)(C) references "attorney-expert communications."

Nevertheless, Washington's CR 26 analog admits no such phrase. Therefore, this court

should only address whether the attorney work product doctrine shields disclosure of any

correspondence between the Estate's counsel and Steven Simons. I note that the question

of whether conversations between the Estate's attorney and Dr. Steven Simons deserve

protection does not come before us.

       Since the trial court affirmed the discovery master's ruling, we consider the

propriety of the master's ruling. The majority and I note an anomaly in the ruling. The

discovery master's order rejected the application of the attorney-client privilege and the

attorney work product doctrine and required Dr. Steven Simons to produce all records

concerning the case, including communications with the Estate of Michael Dempsey's

attorney. Nevertheless, at the same time the master impliedly allowed withholding of

production of some records as long as counsel prepared a privilege log. Presumably the

master would then review the log or the records listed in the log to determine the

applicability of the attorney work product doctrine or the attorney-client privilege. A

privilege log serves no purpose other than to list records being withheld, and completion

of a log conflicts with a requirement to produce all records. We lack any knowledge of

the Estate preparing a privilege log.




                                               4
No. 34573-4-III
In re Estate ofDempsey (dissent)


       On discretionary review, the Estate of Michael Dempsy claims that the trial court

improperly ordered the disclosure of all attorney-expert communications and thereby

violated civil rules that protect attorney work product. But the argument may be based on

a false assumption that the trial court ordered disclosure of all records to the defense

before a review of the records by the master. Still the majority and I proceed with

answering the question of whether Dr. Steven Simons must submit to the defense copies

of the correspondence between counsel and Simons.

       We have no information about any communications between the Estate of Michael

Dempsey's attorney and expert Steven Simons. A privilege log would have assisted us. I

assume the existence of at least one written message between counsel and the testifying

expert or else the Estate would raise no objection and respond that no such

communications exist. Still we know not how many messages exist or the broad

parameters of the nature of the communications. The law sometimes distinguishes

between facts shared by an attorney with an expert witness, on the one hand, and

opinions or strategy revealed by counsel to the testifying expert, on the other hand.

United States v. Deloitte LLP, 610 F.3d 129, 136 (D.C. Cir. 2010); Frontier Refining Inc.

v. Gorman-Rupp Co., 136 F.3d 695, 704 n.12 (10th Cir. 1998). We lack knowledge as to

whether communications between the Estate's attorney and Dr. Simons fall into only one

category, and, if so, which category, or if the information shared fills both categories.

Contrary to the majority, I would hold that the same rule applies to both categories.

                                              5
No. 34573-4-III
In re Estate ofDempsey (dissent)


        The majority identifies as a second issue the discoverability of preliminary drafts

of an expert report prepared by Dr. Steven Simons. Nevertheless, the record contains no

mention of any report drafts. We should not address a question not before us.

        Having discussed the parameters of this court's review, I now address the merits

of the appeal. This court should adopt a rule requiring a party and the party's testifying

witness to disclose all written communications between the party's counsel and the

witness for three reasons. First, the language of CR 26 supports such a rule. Second,

federal case law decided during a time that FRCP read similarly to CR 26 bolsters such a

dictate. Third, public policy behind garnering the truth compels such a principle. I

address each in such order.

                                             CR26

        Washington Civil Rule (CR) 26 catalogs general rules of discovery in civil

matters. CR 26(b )( 1) enables parties to obtain discovery regarding any matter relevant to

the litigation that is not protected by privilege. The work product privilege provides a

qualified immunity from this general discovery rule. Harris v. Drake, 152 Wn.2d 480,

486, 99 P.3d 872 (2004). CR 26(b) memorializes this immunity. The rule declares in

part:

             (4) Trial Preparation: Materials. Subject to the provisions of
        subsection (b)(5) of this rule, a party may obtain discovery of documents
        and tangible things otherwise discoverable under subsection (b)(l) of this
        rule and prepared in anticipation of litigation or for trial by or for another
        party or by or for that other party's representative (including a party's

                                               6
No. 34573-4-III
In re Estate ofDempsey (dissent)


       attorney, consultant, surety, indemnitor, insurer, or agent) only upon a
       showing that the party seeking discovery has substantial need of the
       materials in the preparation of such party's case and that the party is unable
       without undue hardship to obtain the substantial equivalent of the materials
       by other means. In ordering discovery of such materials when the required
       showing has been made, the court shall protect against disclosure of the
       mental impressions, conclusions, opinions, or legal theories of an attorney
       or other representative of a party concerning the litigation.

(Some emphasis added.)

       CR 26 codifies the common law attorney work product doctrine as delineated by

the seminal United States Supreme Court decision of Hickman v. Taylor, 329 U.S. 495,

510-11, 67 S. Ct. 385, 91 L. Ed. 451 (1947). According to Hickman, the work product

doctrine serves many purposes. If the opponent could see an attorney's notes containing

thoughts and impressions, an attorney will hesitate to keep such notes, leading to

inefficiencies in the practice of law. Hickman v. Taylor, 329 U.S. at 510-11. A lawyer

must work with a certain degree of privacy, free from unnecessary intrusion by opposing

parties and their counsel. Much of what the attorney places in writing would remain

unwritten and the attorney's thoughts would not remain his own. A contrary rule would

lead to inefficiency, unfairness, sharp practices, and a demoralizing effect on the

profession. The interests of the clients and the cause of justice would suffer.

       Based on the language of CR 26(b )(4 ), the Estate of Michael Dempsey may be

asserting on appeal a qualified privilege with regard to facts shared by its counsel with a

testifying expert, which privilege requires the defense to establish a substantial need and


                                             7
No. 34573-4-III
In re Estate ofDempsey (dissent)


undue hardship before reviewing the communication. The Estate may also be asserting

an absolute privilege that blankets counsel's mental impressions, opinions and legal

theories imparted to the expert witness. Nevertheless, the opening clause of CR 26(b)(4)

reads: "Subject to the provisions of subsection (b )(5) of this rule." This clause declares

that the attorney work product doctrine remains subject to the principles of discovery

implanted in CR 26(b)(5). Harris v. Drake, 152 Wn.2d at 486. The text of the rule

informs us that CR 26(b)(4) does not apply to situations falling within CR 26(b)(5). In re

Firestorm 1991, 129 Wn.2d 130,137,916 P.2d 411 (1996). Under the first clause of CR

26(b)(4), CR 26(b)(5) tops all provisions of CR 26(b)(4), even the portion of CR 26(b)(4)

that shields the mental impressions, conclusions, opinions, or legal theories of an attorney

from disclosure.

       CR 26(b)(5) addresses discovery from an expert witness. The rule proclaims:

               Trial Preparation: Experts. Discovery of facts known and opinions
      held by experts, otherwise discoverable under the provisions of subsection
      (b )( 1) of this rule and acquired or developed in anticipation of litigation or
      for trial, may be obtained only as follows:
               (A)(i) A party may through interrogatories require any other party to
      identify each person whom the other party expects to call as an expert
      witness at trial, to state the subject matter on which the expert is expected
      to testify, to state the substance of the facts and opinions to which the
      expert is expected to testify and a summary of the grounds for each
      opinion, and to state such other information about the expert as may be
      discoverable under these rules. (ii) A party may, subject to the provisions
      of this rule and of rules 30 and 31, depose each person whom any other
      party expects to call as an expert witness at trial.
               (B) A party may discover facts known or opinions held by an expert
      who is not expected to be called as a witness at trial, only as provided in

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No. 34573-4-111
In re Estate ofDempsey (dissent)


       rule 3 5(b) or upon a showing of exceptional circumstances under
       which it is impracticable for the party seeking discovery to obtain
       facts or opinions on the same subject by other means.

(Some emphasis added). The parties assume that Dr. Steven Simons will testify at any

trial, and so I presume that Simons qualifies as a testifying expert. Thus, CR 26(b)(5)(A),

not (5)(B), controls.

       CR 26(b)(5)(A) allows discovery of facts known and opinions held by experts

acquired or developed in anticipation of litigation or for trial. Discovery from testifying

experts permits the adverse party to prepare for an effective cross-examination and

rebuttal. 8A CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 2029 (3d

ed. & Supp. 2017). Unlike discovery requests made pursuant to CR 26(b )(4 ), the

requesting party need not fulfill the substantial need or undue hardship requirements

when seeking information from a testifying expert. In re Detention of West, 171 Wn.2d

383,408, 256 P.3d 302 (2011).

       CR 26(b)(5)(A) strives to make trials fairer and improve their truth finding

function by granting pretrial access to the other side's expert witnesses in order to prepare

for cross-examination and rebuttal. In re Detention of West, 171 Wn.2d at 404. Among

other rights, the rule grants parties the right to "depose each person whom any other party

expects to call as an expert witness at trial" subject to other rules found in CR 26, as well

as CR 30 and 31. CR 26(b)(5)(A)(ii). CR 30(b)(l) permits service of a subpoena duces

tecum on the expert. CR 26(b)(5), CR 30, and CR 31 place no limits on the documents

                                              9
No. 34573-4-III
In re Estate ofDempsey (dissent)


that the opposing party may subpoena from the testifying expert witness.

       CR 26(b)(5) does not expressly demand that an expert disclose the content of

communications to and from hiring counsel. Nevertheless, the rule requires disclosure of

a summary of grounds for each opinion and other "discoverable" "information about the

expert." CR 26(b)(5)(A)(i). The majority ignores the second category of information.

Discoverable information should include the strategies and opinions shared by counsel

with the expert since this information carries high relevance to the credibility of the

witness.

       CR 26(b)(5) also demands that the expert submit to a deposition. During a

deposition, counsel enjoys wide latitude when posing questions. For example, opposing

counsel may not object based on relevancy. Johnson v. Jones, 91 Wn. App. 127, 134,

955 P.2d 826 (1998). Under CR 26, a party may discover any matter, not privileged, that

might lead to the discovery of admissible evidence. Bushman v. New Holland Div. of

Sperry Rand Corp., 83 Wn.2d 429, 433-34, 518 P.2d 1078 (1974). The language of CR

26(b )( 5) and principles of discovery strongly imply, if not dictate, that the expert must

divulge all information provided to him or her when formulating opinions. The

correspondence that an expert witness reviews when forming his opinions bear relevance

to the suit and thus proffer fodder for deposition questioning. If opposing counsel may

question the witness about sources reviewed when forming opinions, counsel should be

free to see the written sources considered by the witness.

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No. 34573-4-III
In re Estate ofDempsey (dissent)


       The majority insists that CR 26(b)(4), not CR 26(b)(5), applies because the issue

on appeal only concerns an attorney's correspondence. This analysis ignores the sending

of the attorney's correspondence to a third person who will testify and that CR 26(b)(5)

controls disclosure of documents in the hands of this expert witness. Subsection (5)

admits no privilege for documents in the possession of the testifying expert. Subsection

(4) would shield the attorney from the need to produce the correspondence, but the

defense sought the records from the witness, not from counsel.

       No Washington decision directly addresses whether an opposing party may garner

correspondence between a testifying expert and the counsel hiring the expert. A

Washington decision in another context, however, directed disclosure of even the mental

impressions and theories, placed on paper, of an attorney. In Pappas v. Holloway, 114

Wn.2d 198,212, 787 P.2d 30 (1990), our state high court noted that the attorney work

product doctrine does not afford absolute immunity from disclosure of attorney opinions

and thoughts. The high court required a party suing one attorney for malpractice in

representing the party during earlier litigation to disclose the thought processes and

opinions of other attorneys who assisted in litigation on behalf of the client. The court

applied the rule that. when material sought to be discovered is central to a party's claim

or defense, an exception to the strict rule created by the attorney work product doctrine

under CR 26(b) should apply and discovery should be allowed.

       I would follow the teaching of Pappas v. Holloway and the rationale behind full

                                             11
No. 34573-4-III
In re Estate ofDempsey (dissent)


discovery of the basis on which a testifying expert grounds his or her opinion. I would

hold that a testifying expert must produce to the opposing party any correspondence

between an attorney and the expert. The testifying expert uses or at least reviews the

correspondence in the preparation of his opinions. The opinions of the expert necessarily

impact the litigation and become central to a claim or defense. Fairness dictates that the

opponent, and eventually the jury, know what information the attorney shared with the

testifying expert.

       The Estate of Michael Dempsey and the majority rely on In re Detention of West,

171 Wn.2d 383 (2011 ). The majority writes that Detention of West buffers attorney work

product shared with a testifying expert. Nevertheless, West safeguards reports of a

consulting expert, not a testifying expert.

       In Detention of West, one charged with being a sexually violent predator (SVP)

sought discovery of expert reports prepared by the State's testifying expert in other SVP

prosecutions. The defendant did not seek production of communications between the

Attorney General's Office and its testifying expert. The high court held that the State

need not disclose the reports prepared by the expert in cases, in which the expert never

testified. The attorney work product doctrine still protected those reports despite the

cases ending. The high court held that the State must disclose the reports prepared by the

expert in cases, in which the expert testified. The court noted that CR 26(b)(5)(A) does




                                              12
No. 34573-4-III
In re Estate ofDempsey (dissent)


not require a showing of substantial need or exceptional circumstances to obtain

information from a testifying expert. Detention of West erodes the majority's holding.

                                    FED. R. CIV. P. 26

       In 2010, FED. R. CIV. P. 26 was amended to clarify what infonnation the opposing

party may extract from a testifying expert. Before the amendments, former FED. R. CIV.

P. 26(a)(2)(B) (1993) read:

             (B) Witnesses Who Must Provide a Written Report. Unless
      otherwise stipulated or ordered by the court, this disclosure must be
      accompanied by a written report-prepared and signed by the witness-if
      the witness is one retained or specially employed to provide expert
      testimony in the case or one whose duties as the party's employee regularly
      involve giving expert testimony. The report must contain:
             (i) a complete statement of all opinions the witness will express and
      the basis and reasons for them;
             (ii) the data or other information considered by the witness in
      forming them;
             (iii) any exhibits that will be used to summarize or support them.

(Emphasis added.) The 2010 amendments changed FED. R. CIV. P. 26(a)(2)(B)(ii) to

read: "the facts or data considered by the witness .... " More importantly, the 2010

amendments added a new FED. R. CIV. P. 26(b)(4)(C), which declares:

             (C) Trial-Preparation Protection/or Communications Between a
      Party's Attorney and Expert Witnesses. Rules 26(b )(3)(A) and (B) protect
      communications between the party's attorney and any witness required to
      provide a report under Rule 26(a)(2)(B), regardless of the form of the
      communications. except to the extent that the communications:
             (i) relate to compensation for the expert's study or testimony;
             (ii) identify facts or data that the party's attorney provided and that
      the expert considered in fanning the opinions to be expressed; or
             (iii) identify assumptions that the party's attorney provided and that

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No. 34573-4-III
In re Estate ofDempsey (dissent)


       the expert relied on in forming the opinions to be expressed.

(Emphasis added.)

       The majority fails to analyze the content of FED. R. Crv. P. 26 before the 2010

amendments. Before 2010, FED. R. CIV. P. 26(b)(2) had similarities and differences with

CR 26(b)(5), as the state rule now reads and then read. The former allowed discovery of

all information considered by the expert witness, while the latter requires the expert to

state such other information as may be discoverable. Nevertheless, the state rule should

at least be as broad as the federal rule, since the rule implies discovery of all information

that may lead to relevant evidence.

       When a state rule reads identically to its federal rule counterpart, analyses of the

federal rule by federal courts provide persuasive guidance to the application of our

comparable state rule. Soter v. Cowles Publishing Company, 162 Wn.2d 716, 739, 174

P.3d 60 (2007). This same principle should apply when the state rule provides broader

discovery.

       The prevailing view under federal law, until the 2010 amendments to FED. R. CIV.

P. 26, stated that disclosure of attorney work product to a party's expert, who considered

the information in formulating his or her opinion, waived any work product protection.

Johnson v. Gmeinder, 191 F.R.D. 638,641 (D. Kan. 2000). Disclosure and consideration

of either fact or attorney opinion work product to a testifying expert resulted in waiver.

See B.C.F. Oil Refining, Inc. v. Consolidated Edison Co. of New York, 171 F.R.D. 57

                                             14
No. 34573-4-111
In re Estate ofDempsey (dissent)


(S.D.N.Y. 1997); United States v. City of Torrance, 163 F.R.D. 590 (C.D. Cal. 1995).

The majority of federal decisions held that when an attorney provided any type of

protected or privileged materials to a testifying expert who considered them in forming

his or her opinions, the documents were no longer privileged and must be produced to the

other parties to the lawsuit. PacifiCorp v. Northwest Pipeline GP, 879 F. Supp. 2d 1171,

1213 n.21 (D. Or. 2012); Lamonds v. General Motors Corp., 180 F.R.D. 302,305 (W.D.

Va. 1998); Musselman v. Phillips, 176 F.R.D. 194,202 (D. Md. 1997); B.C.F. Oil

Refining, Inc. v. Consolidated Edison Co. ofNew York, 171 F.R.D. at 66; Furniture

World, Inc. v. D.A. V. Thrift Stores, Inc., 168 F.R.D. 61, 62 (D.N.M. 1996); Karn v.

Ingersoll Rand Co., 168 F.R.D. at 639-40. The cases recognized that even the absolute

immunity provided for opinion work product must cede to the sweeping rule of

disclosure. Johnson v. Gmeinder, 191 F.R.D. at 646-47. Documents and information

provided to a testifying expert in connection with opinions and testimony were

discoverable by the opposing party, whether or not the expert relied on the documents in

preparing an expert report. In re Pioneer Hi-Bred International, Inc., 238 F.3d 1370,

1375-76 (Fed. Cir. 2001).

      The Estate of Michael Dempsey does not now, but might in the future, argue that

Dr. Steven Simons never considered any correspondence from counsel when formulating

his expert opinions or that Dr. Simons did not consider a portion of a letter or message

when fashioning his conclusions. I would still hold that the Estate must disclose all

                                            15
No. 34573-4-III
In re Estate ofDempsey (dissent)


sections of all correspondence. I consider unworkable any rule that allows a party to

withhold some of the correspondence, between counsel and the testifying expert, on the

theory that the correspondence lacks importance or the expert ignored information in the

correspondence.

        Under the attorney work product doctrine rules in federal court before 2010, courts

generally required that, in order for waiver to occur, the work product must have been

"considered" by the expert in formulating his or her opinions. Lamonds v. General

Motors Corp., 180 F.R.D. at 305; Musselman v. Phillips, 176 F.R.D. at 201; Karn v.

Ingersoll Rand Co., 168 F.R.D. at 635. These cases coincided with the language of FED.

R.   CIV.   P. 26(a)(2)(B), which required and still requires an expert to prepare a report and

identify in the report all data or other information "considered by the witness in forming

the opinions." The rule does not require that the expert "rely" on the work product in

formulating his or her opinion. Lamonds v. General Motors Corp., 180 F.R.D. at 306.

The term "considered" invokes a broader spectrum of thought than the phrase "relied on"

that requires dependence on the information. Lamonds v. General Motors Corp., 180

F.R.D. at 306; Johnson v. Gmeinder, 191 F.R.D. at 648.

        FED. R.    CIV.   P. 26(a)(2)(B), either now or in its pre-2010 language, does not define

the term "considered," and federal courts have struggled to define the term. One court

has held that the term means "take into account" the document or other material. Karn v.

Ingersoll Rand, 168 F.R.D. at 635. Applying that definition, one court concluded that the

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No. 34573-4-III
In re Estate of Dempsey (dissent)


work product at issue had been "considered" when the experts reviewed the documents in

connection with forming their opinions. Karn v. Ingersoll Rand, 168 F.R.D. at 635.

Another court held that the expert "considered" a document if the expert received and

read the documents before forming his or her expert opinion. Lamonds v. General

Motors Corp., 180 F.R.D. at 306.

       Asking a court to determine whether an expert has "considered" certain materials,

as that term is commonly used, would require the court to explore the expert's subjective

mental processes and risks the creation of an unwieldy rule that would provide

uncertainty as to the protected status of work product or other privileged materials.

Johnson v. Gmeinder, 191 F.R.D. at 648-49. Such a rule would also permit cagy

responses from experts as to the importance of a document in formulating an opinion.

Therefore, one court has ruled that, when the expert read or reviewed the privileged

materials before or in connection with formulating his or her opinion, the expert will be

deemed to have "considered" those materials for purposes of FED. R. CIV. P. 26(a)(2)(B).

Johnson v. Gmeinder, 191 F.R.D. at 648-49.

                                       Public Policy

       Several related policy reasons support a rule that favors production of any

information that the expert reviews. First, the adverse party must obtain the materials or

documents that a testifying expert considers in order to discern the extent to which the

opinion of the expert may have been influenced by counsel. B. CF. Oil Refining, Inc. v.

                                            17
No. 34573-4-III
In re Estate ofDempsey (dissent)


Consolidated Edison Co. ofNew York, 171 F.R.D. at 66; Karn v. Ingersoll Rand, 168

F.R.D. at 638. Second, without the materials, the opposing party will be denied the

opportunity to a full and fair cross-examination of the expert witness. Third, the fact-

finder is entitled to evaluate potential biases in the witnesses' testimony revealed in

communications with counsel. PacifiCorp v. Northwest Pipeline GP, 879 F. Supp. 2d at

1213.

        Proper cross-examination of an expert witness requires that the adverse party

know the facts underlying the expert's opinions, including whether the expert made an

independent evaluation of those facts or whether he instead adopted the opinions of the

lawyers that retained him. Elm Grove Coal Co. v. Director, Office of Workers'

Compensation Programs, 480 F.3d 278, 301 (4th Cir. 2007); Musselman v. Phillips, 176

F.R.D. at 200. The weight accorded to an expert's opinion must vary in accordance with

the expert's competence and knowledge. Occulto v. Adamar of New Jersey, Inc., 125

F.R.D. at 615-16. An expert who can be shown to have adopted the attorney's opinion as

his own stands less tall than an expert who engaged in painstaking inquiry and analysis

before arriving at an opinion. Occulto v. Adamar of New Jersey, Inc., 125 F.R.D. at 616.

        Foreign state decisions endorse my dissent. Deluca v. State Fish Co., 217 Cal.

App. 4th 671, 158 Cal. Rptr. 3d 761 (2013); Gall v. Jamison, 44 P.3d 233 (Colo. 2002);

State ex rel. American Economy Insurance Co. v. Crawford, 75 S.W.3d 244 (Mo. 2002);

Emergency Care Dynamics, Ltd. v. Superior Court, 188 Ariz. 32, 932 P.2d 297 (Ct. App.

                                             18
No. 34573-4-III
In re Estate ofDempsey (dissent)


1997). Gall v. Jamison presents a thorough examination of other decisions and the

competing rationales behind enforcing the attorney work product doctrine and demanding

full disclosure. The Colorado court addressed, in a medical malpractice case, whether a

written communication from an attorney to a retained testifying expert was discoverable

notwithstanding the attorney's claim of work product privilege. The court answered in

the affirmative.

       In Gall v. Jamison, the Colorado court applied the rule that privileged materials

lose their privileged status when disclosed to, and considered by, a testifying expert. The

court also noted that a party waives the work product privilege when otherwise protected

materials are used to influence and shape testimony. Materials and information shared

with a retained expert will affect her credibility. The adverse party must be permitted to

inspect the shared documents in order to effectively cross-examine the expert witness on

the degree to which her opinion was informed by the retaining counsel's disclosure of

limited facts, highlighting of particular facts, or emphasis on certain studies and scholarly

literature. According to the Colorado court, strong public policy considerations support a

rule favoring broad disclosure. A bright-line rule requiring disclosures of all attorney-

expert communications promotes efficiency, fairness, and the truth-seeking process.

Requiring trial courts to otherwise review every expert communication in camera to

determine the appropriate degree of disclosure would foment needless discovery battles,

undercut the truth-seeking principles of the rules of civil procedure, and waste scarce

                                             19
No. 34573-4-111
In re Estate ofDempsey (dissent)


judicial resources. A bright-line approach gives parties notice of precisely which

materials will be discoverable in every case, thereby reducing the number of discovery

disputes. The court concluded that, when an expert has read or reviewed the privileged

materials before or in connection with formulating his or her opinion, the expert must

share the materials with the opposing party.

       Often issues in civil litigation divide the plaintiffs' bar from the defense bar. The

question on appeal should unify both bars. Both sides benefit from a rule that ensures

that the opinions of an expert are truly his or her opinions and not the opinions of hiring

counsel. Truth more likely prevails.

       To illustrate the dangers of the majority's holding, I attach a hypothetical letter

between a hiring attorney and an expert witness. Although the letter exaggerates, the

letter illustrates the mischief in shielding communications. To show that the question on

appeal should unite the plaintiffs' and defense bar, I switch the function of counsel and

assign the hiring attorney the role of defense counsel.

       The majority asserts that the hypothetical letter does not warrant protection if the

expert employs the terminology or catchphrases contained in the letter. The majority also

writes that a letter from counsel to the expert does not deserve protection if the letter

improperly directs the expert's opinions. Nevertheless, the majority cites no decision to

support either of these two instances of a limited waiver of the attorney work product

doctrine. Nor does the major provide any guidelines for a lower court to determine when

                                               20
No. 34573-4-III
In re Estate ofDempsey (dissent)


counsel's letter "improperly directs" the expert's opinions. One wonders how opposing

counsel will know if the expert employs the terminology suggested by a letter when

opposing counsel is not privy to the letter. One wonders if the majority suggests that a

trial court or discovery master must always review the letter between counsel and the

expert after the expert's testimony in order to discern whether the expert borrowed from

the letter. My hypothetical letter does not direct the expert as to how to testify. The letter

hopes the expert will share the attorney's views and opinions, but the expert remains free

to adopt his own opinions. The majority's shielding of the sharing of opinions shared by

counsel fails to note the ability of an attorney to impliedly guide the expert to form

certain opinions, without tacitly so directing. The sharing of opinions by itself, without

any direct encouragement, encourages the expert to adopt the opinions.

       Because I would hold that the Estate of Michael Dempsey must produce all

correspondence between Dr. Steven Simons and the Estate's counsel, I would conclude

that no privilege log need be prepared. I also note that counsel remains free to openly

discuss theories and strategy with a nontestifying expert, sometimes referred to as a

consulting expert, without waiving the attorney work product doctrine.

I RESPECTFULLY DISSENT



                                              Fearing, C.J.




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No. 34573-4-111
In re Estate of Dempsey (dissent)


                                           APPENDIX

December 7, 201 7

Dr. Haier Gunn
88 Narrow Street
Suite 1313
New York, New York 10004

       Re: Bernard Rommel v. City of New Paris
       Orleans Parish Cause No. 17-6-00666

Dear Dr. Gunn:

As indicated over the phone, I wish to hire you as an expert witness in the above case, in
which Bernard Rommel sues the city of New Paris. I represent New Paris. I ask that you
review the medical records of Bernard Rommel and conduct an independent medical
examination of him. I anticipate your testifying at the trial scheduled for the week of
September 10, 2018.

On October 31, 2016, at 3 p.m., Bernard Rommel drove his car westbound on Amiens
Avenue, in New Paris, when his car was struck by a car driven southbound by Erwin
Montgomery on Mayonnaise Street. The collision occurred at the intersection of Amiens
Avenue and Mayonnaise Street. A stop sign on Mayonnaise Street controlled
Montgomery's path. Montgomery claims he stopped at the sign. He further claims he
could not see the approaching car because a fence, constructed and owned by the city of
New Paris at the adjoining city park, obstructed his view. At the time of the accident,
Rommel travelled at 25 mph. Montgomery had accelerated to 5 to 10 mph.

As a result of the collision, Bernard Rommel alleges he suffered abrasions and soft tissue
injuries. More importantly, he claims that he has chronic lower back pain, upper back
pain, and neck soreness. He complains of tingling radiating into his left leg and his right
arm. Rommel further claims that he can no longer work as a carpenter or perform other
manual labor.

My mental impressions are that this low impact accident could not have caused the
injuries about which Bernard Rommel complains. I believe that soft tissue injuries are
not real. At trial, my legal theories will include arguing that Rommel merely uses the
accident as an excuse to feed his opioid dependency. I conclude that Rommel also uses

                                            22
No. 34573-4-III
In re Estate ofDempsey (dissent)


the accident as a justification to forgo employment. I opine that Rommel's only
disability is "compensation syndrome." He wants money and plenty of it.

By the way, I am not expressly or impliedly suggesting to you what opinions to adopt.
Instead, a primary legal strategy of mine is for you to adopt on your own and to testify to
all of my mental impressions, conclusions, opinions, and legal theories without the jury
knowing that I shared with you these thoughts shielded by the attorney work product
doctrine.

I will shortly forward to you Bernard Rommel's medical records and contact your
assistant to schedule the independent and unbiased medical examination.

Respectfully Yours,


George D. Fence




                                            23
