          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



LYNN DALSING,                                   NO.70851-1-


                    Plaintiff,                  DIVISION ONE


MICHAEL AMES,

                    Respondent,

             v.



PIERCE COUNTY, a municipal                      UNPUBLISHED OPINION
corporation,
               Appellant.                       FILED: August 10, 2015



      Lau, J. —The trial court awarded attorney fees and costs to Detective Michael

Ames—a nonparty—after he filed a successful motion for a protective order under CR

26(c) seeking to disclose e-mails between himself and Pierce County prosecutors

regarding the criminal prosecution of Lynn Dalsing, the plaintiff below. The County

appeals, challenging the award of attorney fees because (1) the trial court erred when it

granted Ames' motion for a protective order, (2) its opposition to the motion was

substantially justified, and (3) the amount of the award is unreasonable. Because the
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civil rules allow a trial court to grant a motion for a protective order submitted by a

nonparty and because the County's opposition to the motion was not substantially

justified, we conclude the trial court acted within its discretion when it granted Ames'

motion for a protective order. And because the trial court's findings of fact and

conclusions of law adequately support the award, we affirm.

                                           FACTS


       This appeal arises from Lynn Dalsing's1 civil action against Pierce County for

false arrest and malicious prosecution. In 2010, Pierce County Detectives Debbie

Heishman and Mike Ames investigated Dalsing's husband, Michael Dalsing, for sex

crimes and child pornography. During the investigation, the Detectives discovered a

photograph on Michael Dalsing's computer depicting a naked adult woman lying on a

bed with a naked pre-pubescent girl in a sexually explicit pose. Investigators suspected

the woman in the photograph was Lynn Dalsing. On December 8, 2010, Lynn Dalsing

was arrested and charged by information on one count of child molestation in the first

degree and one count of exploitation of a minor. Detective Heishman stated in her

declaration for determination for probable cause that Dalsing was the woman in the

photograph: "One photograph depicted the defendant [Dalsing] lying on her bed, naked

on her back with a pre-pubescent girl. . . lying naked on her back on top of the

defendant." Clerk's Papers (CP) at 2.

       Ames, a detective specializing in computer forensics, doubted the sufficiency of

probable cause to charge Dalsing. In a June 9, 2011 e-mail exchange with Heishman—



        1 Although she was the plaintiff below, Dalsing is not party to this appeal. We
refer to Lynn Dalsing as "Dalsing" in this appeal.
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the lead detective on the case—Ames explained that minimal computer evidence

existed to support Dalsing's prosecution:

      [Heishman]: Prosfecutors] are wondering if you were able to tell if Lynn
                  Dalsing had any type of account or files on the computers so
                  we can charge her with the possession also?

      [Ames]:        No, it appeared that he [Michael Dalsing] was the computer
                     person. There is no way you can get by the defense that
                     she will use which will be it was him and especially now that
                     he is pleading to it. I could easily link him to the child porn
                     but not her. No way do I want to go back into that case to
                     look for something that I cannot prove. Definitely no link to
                     her and the child porn other than that one picture but we
                     can't see her so no way to prove that either. I did look hard
                     at the porn that was downloaded from the internet and
                     nothing leads back to her. I did look at that angle too
                     especially after I found that one picture.

CP at 454 (emphasis added). Heishman forwarded Ames' response e-mail to Lori

Kooiman, the deputy prosecutor assigned to the criminal case, who responded:

             We will have to meet, all of us, early next week and go through the
      evidence. I think you're missing the boat to some degree Mike [Ames], as
      he did not plead to any of the child porn, he pled to raping four kids. I do
      have to provide your e-mail to defense. I do want to discuss some of your
      assertions.


CP at 454 (emphasis added). Kooiman did not disclose the e-mail to Dalsing's defense

counsel. On July 13, 2011, Pierce County prosecutors dismissed the charges against

Dalsing without prejudice, stating that "the photograph that is the basis for the current

case ... is part of a known series of photographs not involving this defendant." CP at

146. Accordingly, Dalsing was released after seven months in jail.




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       On March 14, 2012, Dalsing filed a civil action against the County for false arrest

and malicious prosecution.2 Her complaint alleged that she was arrested and charged

with first degree child molestation and sexual exploitation of a minor premised on the

false allegation that she engaged in sexual conduct with a minor and photographed

herself with the child in a sexually explicit pose. The complaint further alleged that after

she was arrested and charged, Pierce County delayed several months before allowing

Dalsing's criminal defense counsel access to the photograph, despite knowledge that

the photograph constituted exculpatory evidence discoverable under Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194, 10 L Ed. 2d 215 (1963). Dalsing alleged the prosecutors

continued to prosecute the criminal case even after they learned Dalsing was not the

woman depicted in the photograph. Prosecutors pressed their case against Dalsing

until the eve of trial when they finally acknowledged the County could not prove its case.

      The complaint alleged Pierce County's liability through the actions of its

employees and agents, specifically Detective Ames and Detective Heishman:

              Plaintiff, Lynn Dalsing was falsely arrested on December 8, 2010 as
      the result of a seriously flawed investigation by members of the Pierce
      County Sheriff's Department, including . . . Detective Mike Ames ... in the
      course of investigating the sex-crimes and pornography cases against
      Michael Dalsing and William Maes, inspected computers and images on
      the computers . . . Detective Ames falsely and/or without probable cause
      identified photographs as depicting Lynn Dalsing as posing nakedly with a
      small, naked female child.

              Following the arrest of Lynn Dalsing . . . Ames and other yet to be
      identified employees of Pierce County frustrated the efforts by Plaintiff
      Dalsing's criminal defense lawyer... to obtain copies of photographs that
      were the basis for the prosecution . . .




      2 Dalsing did not name Ames as a defendant in her complaint.
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              The police case file developed by Detectives . . . Ames and others,
       contained information that clearly notified Pierce County detectives and
       Pierce County of the falsity of their allegations.

CP at 2-4.

       Ames expressed his concerns regarding the e-mail to Pierce County civil deputy

prosecutors when they contacted him about Dalsing's civil action. On October 18,

2012, Ames forwarded to the civil deputy prosecutor, Jim Richmond, the June 9, 2011

e-mail exchange between Heishman and Kooiman.

       In July 2012, Dalsing made several discovery requests, including a request for all

e-mail communications:


      REQUEST FOR PRODUCTION NO. 5: Produce the entire Pierce County
      Sheriff's Department Files involving the following investigations:
             A. Incident #102510339, including any and all evidence, including
                  but not limited to photographs, videotapes, computer files and
                  records, and any and all "documents" and tangible items of
                  evidence. This request includes requests for any and all email
                  communications, within the Pierce County Sheriff's Department,
                  to and from the Pierce County Prosecutor's Office, and to and
                  from the Department of Social & Health Servicesf.]

CP at 200, 379. The County responded on October 31, 2012. The County objected to

this request for production on grounds that the request was "vague, overbroad, and

outside the scope of discovery under CR 26 (b)(1) and privileged under RCW 42.56.240

and RCW 10.97.050." CPat201.

      During his discovery deposition on February 14, 2013, Ames learned for the first

time that the County never disclosed his e-mail exchange with prosecutors to Dalsing's

criminal defense counsel. When Dalsing's civil counsel questioned Ames about

communication with the prosecutor's office regarding the photograph allegedly depicting

Dalsing, Richmond objected and directed Ames not to answer on work product grounds.

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       After his deposition, Ames was upset on learning of the prosecutor's failure to

turn over the e-mails. He hired attorney Joan Mell to represent him. On February 20,

2013, Mell contacted Richmond to discuss Ames' concerns over his deposition and the

prosecutor's failure to turn over the e-mails. Mell requested to participate in a CR 26(i)

discovery conference3 scheduled for February 22, but Richmond declined her request.

Mell spoke with Richmond over the phone on February 21 and 22, explaining e-mails

between Heishman and Kooiman were not privileged attorney work product. Richmond

maintained that the County was not required to disclose the e-mails. They failed to

reach an agreement. Mell agreed to wait and see if Dalsing served any motion

regarding the alleged privileged e-mails.

       On March 7, 2013, Dalsing filed a motion to compel discovery, seeking "emails

between the Pierce County Prosecutor's Office (Criminal Division) and Detectives

Heishman, Ames and/or any and all other police personnel. . . concerning the

investigation of facts related to the prosecution of Lynn Dalsing, for in camera review."

CP at 121. The motion also sought a ruling on the County's deposition objections and

authority to depose prosecuting attorneys. On March 12, Ames filed a motion for order

permitting documents to be filed under seal. Ames offered the e-mails for in camera

review "pursuant to the protective order provisions of CR 26(c)" so that the court could

"resolve the dispute over the scope and application of attorney client privilege and work

product." CP at 285-87. On March 14, the County filed a privilege log for the first time.



      3 CR 26(i) requires counsel to meet and confer in an effort to resolve discovery
disputes before submitting them to the court. The attorneys must meet and confer
either in person or by telephone. Rudolph v. Empirical Research Systems, Inc., 107
Wn. App. 861, 28 P.3d 813 (2001).
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On March 22, the County filed responses opposing both Dalsing's motion to compel and

Ames' motion to file under seal.

       On April 5, the court granted Ames' motion to file the e-mails under seal. On

April 22, however, the court granted Dalsing's motion to compel in part and ruled that

the e-mails did not need to be filed under seal.

       On July 2, Ames filed a motion for his attorney fees and costs under CR 26 and

CR 37. The County opposed the motion on several grounds. The trial court granted

Ames' motion. Relying on Eugster v. City of Spokane. 121 Wn. App. 799, 91 P.3d 117

(2004), the court reasoned that "trial courts have the authority under CR 26(c) to award

attorney fees to a nonparty who has prevailed on a motion for protective order through

the application of CR 37(a)(4)." CP at 795. The court acknowledged that, even though

Ames never sought a protective order, it nevertheless had the authority to award fees to

Ames due to "the unique circumstances of this case." CP at 796. As required by CR

37(a)(4), the court also concluded that (1) the County's conduct during discovery was

not substantially justified, (2) there were no other reasons why an award would be

unjust, and (3) the requested fees were reasonable. The County appeals the award.

                                       ANALYSIS


      Standard of Review


      This court reviews an award of attorney fees for abuse of discretion. Mayer v.

City of Seattle, 102 Wn. App. 66, 79, 10 P.3d 408 (2000). Attorney fees awarded under

CR 37 will not be disturbed on appeal except upon a clear showing of abuse of

discretion. Reid Sand & Gravel, Inc. v. Bellevue Prop.. 7 Wn. App. 701, 705, 502 P.2d
No. 70851-1-1/8



480 (1972). Abuse is shown when the trial court's decision is manifestly unreasonable

or based upon untenable grounds. Mayer, 102 Wn. App. at 79.

       Award of Attorney Fees to Nonparty Under CR 26 and CR 37

       Generally, under CR 26 and CR 37, a trial court may award attorney fees to a

nonparty who files a successful motion for a protective order. See Euqster, 121 Wn.

App. at 815-16. CR 26(c) provides, in part:

              (c) Protective Orders. Upon motion by a party or by the person
       from whom discovery is sought, and for good cause shown, the court in
       which the action is pending or alternatively, on matters relating to a
       deposition, the court in the county where the deposition is to be taken may
       make any order which justice requires to protect a party or person from
       annoyance, embarrassment, oppression, or undue burden or expense . ..

       The provisions of rule 37(a)(4) apply to the award of expenses incurred in
       relation to the motion.


CR 26(c). CR 37(a)(4) governs awards granted under CR 26(c):

              If the motion [for a protective order] is granted, the court shall, after
      opportunity for hearing, require the party or deponent whose conduct
      necessitated the motion or the party or attorney advising such conduct or
      both of them to pay to the moving party the reasonable expenses incurred
      in obtaining the order, including attorney fees, unless the court finds that
      the opposition to the motion was substantially justified or that other
      circumstances make an award of expenses unjust.

CR 37(a)(4). Awarding fees under these provisions is a two-step process: first, CR

26(c) provides the criteria for determining whether the court should craft an order to

protect a party or person from whom discovery is sought. Second, if the court grants an

order seeking protection, CR 37(a)(4) allows the court to award fees to the movant

unless the party opposing the protective order was substantially justified in doing so or

other circumstances make the award unjust. Therefore, we address (1) whether the

trial court abused its discretion when it granted Ames' motion under CR 26(c), and (2)

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whether the trial court abused its discretion when it awarded Ames attorney fees related

to that motion under CR 37(a)(4).

       Motion Under CR 26(c)

       The County fails to show that the court abused its discretion when it granted

Ames' motion under CR 26.

       The plain, unambiguous language of CR 26(c) provides courts with broad

discretion to tailor relief regarding the scope of discovery. Indeed, "[CR] 26(c) was

adopted as a safeguard for the protection of parties and witnesses in view of the almost

unlimited right of discovery given by Rule 26 (b)(1). The provision emphasizes the

complete control that the court has over the discovery process." 8A Charles Alan

Wright, Arthur R. Miller &Richard L. Marcus, Federal Practice and Procedure §

2036 (2010) (footnote omitted).4 CR 26(c) allows the court to "make any order which

justice requires to protect a party or person from annoyance [or] embarrassment." CR

26(c) (emphasis added). The plain meaning of CR 26(c) unambiguously provides

courts significant authority to craft various remedies to tailor the discovery process. See

King v. Olympic Pipeline Co.. 104 Wn. App. 338, 371, 16 P.3d 45 (2000) ("Both the rule

and the case law thus provide a trial court with substantial latitude to decide when a

protective order is appropriate and what degree of protection is required given the

unique character of the discovery process."); Miscellaneous Docket Matter No. 1 v.

Miscellaneous Docket Matter No. 2. 197 F.3d 922, 925 (8th Cir. 1999) ("Because of

       4 CR 26(c) governs protective orders. This rule's text and substance is nearly
identical to the comparable federal rule. Thus, federal interpretations of the rule provide
helpful guidance and are frequently cited as persuasive. 3A Karl B. Tegland,
Washington Practice: Rules Practice CR 1 author's cmt. 2, at 12 (6th ed. 2013).

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No. 70851-1-1/10



liberal discovery and the potential for abuse, the federal rules confer broad discretion on

the district court to decide when a protective order is appropriate, and what degree of

protection is required."). Thus, a court may be as inventive as the necessities of a

particular case require in order to achieve the benign purposes of the rule. Brulotte v.

Reqimbal. 368 F.2d 1003 (9th Cir. 1966).

       Accordingly, given the unique circumstances presented here, we conclude the

trial court acted well within its discretion when it granted Ames' motion to file the e-mails

under seal. In her complaint, Dalsing alleged specifically that Ames, together with

others in the Pierce County Sheriff's Department, pursued a malicious prosecution

against her without probable cause. But Ames reasonably doubted there was sufficient

probable cause to charge Dalsing, and he stated this concern to prosecutors in an

e-mail. Ames feared that the County's unwarranted refusal to allow discovery of the

e-mail and his related testimony would irreparably harm his personal and professional

reputation. When the County refused to disclose the e-mail on attorney work product

grounds, Ames retained private counsel to protect his personal and professional

interests. Based on his examination of the evidence, training and experience, Ames

vehemently disagreed with the County prosecutors that probable cause existed to

prosecute Dalsing. Under these unique circumstances, the trial court reasonably

determined that "justice require[d]" an order granting Ames' motion to file the e-mail

under seal "to protect [Ames] from annoyance, embarrassment, oppression, or undue

burden . . . ." CR 26(c).5


       5The trial court was not precluded from considering Ames' motion—as the
County contends—because of any alleged failure to satisfy the meet-and-confer
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       The County argues the trial court erroneously granted Ames' motion because,

fundamentally, Ames' motion was not a protective order for purposes of CR 26(c). This

argument elevates form over substance.

       First, the County argues that Ames was not a "person from whom discovery

[was] sought," CR 26(c), and therefore he cannot seek protection under CR 26(c). The

County provides no authority supporting this assertion. See DeHeer v. Seattle Post-

Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962) ("Where no authorities are cited

in support of a proposition, the court is not required to search out authorities, but may

assume that counsel, after diligent search, has found none."). Although a protective

order is generally viewed as restricting discovery, as noted above, nothing in the rules

or case authority limits the trial court's authority in granting the relief sought by Ames

here. Further, Ames was a "person from who discovery [was] sought." CR 26(c). Not

only was Ames deposed by Dalsing, he possessed unique knowledge central to

Dalsing's lawsuit and contained in the disputed e-mails. Ames had a protectable

individual and professional interest that he justifiably sought to protect under the civil

rules of discovery. "Whenever possible, the rules of civil procedure should be applied in



requirement under CR 26(i). The record shows that Ames' attorney made a good faith
effort to meet and confer with the County. Further, she discussed Ames' concerns
underlying his motion during a phone call. In any event, failure to meet the CR 26(i)
requirements does not prevent a court from considering a discovery motion:

             We have already explained that failure to strictly comply with the
      procedural provision of CR 26(i) does not divest the court of jurisdiction to
      hear discovery motions. Likewise, we have explained that a court has
      discretion to decide whether to hear a motion even where the moving
      party has failed to strictly comply with the rule.
Amy v. Kmart of Washington LLC, 153 Wn. App. 846, 863, 223 P.3d 1247 (2009).

                                           -11-
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such a way that substance will prevail over form." Griffith v. City of Bellevue, 130 Wh.2d

189, 192 P.2d 83 (1996). Civil Rule 1 codifies this principle. It states that the civil rules

shall be construed to secure the just, speedy, and inexpensive determination of actions.

In Spokane County v. Specialty Auto and Truck Painting, Inc., 153 Wn.2d 238, 103 P.3d

729 (2004), the court stated,

             CR 1 requires Washington courts to interpret the court rules in a
       manner "that advances the underlying purpose of the rules, which is to
       reach a just determination in every action." Burnet v. Spokane
       Ambulance. 131 Wn.2d 484, 498, 933 P.2d 1036 (1997). The court rules
       are intended to allow the court to reach the merits of an action. Sheldon v.
       Fettig, 129 Wn.2d 601, 609, 919 P.2d 1209 (1996).

Spokane County. 153 Wn.2d at 245.

       Second, the County contends that Ames failed to seek "protection" because he

never requested a limitation on discovery nor did his motion argue for a specific

outcome.6 To support this contention, the County relies on the various ways a trial court

might limit discovery, listed under CR 26(c)(1)-(7). Though this list of remedies

generally restricts discovery, it is not exclusive. Courts may fashion other remedies not

listed in CR 26(c) they deem appropriate. See 3A Karl B. Tegland, Washington

Practice: Rules Practice CR 26 author's cmt. 43, at 652 (6th ed. 2013). "[A] court is

not limited to the eight specified types of orders. Instead it may make 'any order which

justice requires to protect a party or person from annoyance, embarrassment,

oppression, or undue burden or expense,' and the court has considerable latitude in
focusing on the nature ofthe harm advanced to justify the order." 8A Wright, Miller &


       6Ames' motion requested that the court "resolve the dispute over the scope and
application of attorney client privilege and work product," specifically regarding his e-
mail with prosecutors. CP at 287-288.
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Marcus, § 2036 (2010). The freedom to fashion appropriate remedies to the unique

problems that arise during discovery is consistent with the "substantial latitude" courts

possess when considering how to rule on a protective order. King, 104 Wn. App. at

371.


       Finally, the County argues that Ames never moved for a protective order under

CR 26(c), citing a declaration in which Ames' attorney stated that Ames' motion did not

seek protection but instead was "responding to Lynn Dalsing's motion to compel." CP

at 365. But Ames' motion to file the e-mails under seal expressly invoked "the

protective order provisions of CR 26(c)." CP at 285-87. Further, a court may award

fees under CR 26 and CR 37 even if the motion giving rise to those fees was not

expressly filed under CR 26. See Eugster, 121 Wn. App. at 815 (motion brought under

CR 45 "triggered]" the attorney fees provision under CR 26)7

       We agree, as the trial court noted, this dispute stems from unusual

circumstances. As discussed above, trial courts have broad discretion to reach the

merits of a discovery dispute and to craft protective orders during discovery to ensure a

just determination of the action. Under the unique circumstances presented here, the

trial court acted within its discretion when it granted Ames' motion.



       7The County contends Eugster does not apply here because Ames never filed or
prevailed on a motion for a protective order: "Eugster never considered awarding
attorney fees for a nonparty's costs unrelated to compelling—or seeking protection
from—discovery, and that did not concern CR 26 or CR 37." Br. of Appellant at 26. But
Eugster confirms the plain language in CR 26 and CR 37—a nonparty who files a
successful motion for a protective order may receive attorney fees for that order.
Eugster, 121 Wn. App. at 815. As discussed above, Ames' motion can be fairly
characterized as a protective order under CR 26(c). Therefore, under CR 26, CR 37,
and Eugster, the trial court had the authority to grant Ames' motion and consider
awarding related attorney fees. Eugster, 121 Wn. App. at 815.
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       Attorney Fees Under CR 37

       Next we consider whether CR 37 provides any limitation on the court's award of

attorney fees. Ames sought reasonable attorney fees for litigating the work product

privilege issue. Because the County failed to show that its opposition to Ames' motion

was substantially justified, we conclude the trial court acted within its discretion when it

awarded Ames attorney fees and costs.8

       CR 37(a)(4) requires a court to award attorney fees to a party who files a

successful protective order under CR 26(c) unless the party opposing the motion was

substantially justified in doing so or other circumstances make the award unjust:

              If the motion is granted, the court shall, after opportunity for
       hearing, require the party or deponent whose conduct necessitated the
       motion or the party or attorney advising such conduct for both of them to
       pay to the moving party the reasonable expenses incurred in obtaining the
       order, including attorney fees, unless the court finds that the opposition to
       the motion was substantially justified or that other circumstances make an
       award of expenses unjust.

CR 37(a)(4). The trial court has broad discretion to award attorney fees, and we do not

disturb an award of attorney fees except upon a clear showing that the court abused

that discretion. Reid Sand, 7 Wn. App. at 705.

       The County primarily argues its opposition to Ames' motion was substantially

justified because the e-mails constituted privileged attorney work product. The trial

court ruled that the County's assertion of attorney work product doctrine lacked merit



        8The County relies heavily on our court commissioner's December 2013 written
ruling denying the County's motion for discretionary review of various trial court
discovery rulings related to Dalsing's motion to compel following its in camera review.
The commissioner's ruling has no binding effect on an independent review of the issues
here. We decline to consider the commissioner's discretionary review ruling.


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because the e-mails at issue contained "information relevant to mental impressions that

[were] directly at issue in this case, and Plaintiff has demonstrated a substantial need

for access to these documents." CP at 397. The County's opposition was not

substantially justified because Ames sought only to file the e-mails under seal so the

court could review the e-mails in camera and determine whether any privilege applied.

Ames did not provide the e-mails to Dalsing. The County was therefore not justified in

opposing the motion because in camera review is the appropriate action for a court to

take when considering whether evidence is privileged. See Limstrom v. Ladenburg, 136

Wn.2d 595, 615, 963 P.2d 869 (1998) ("the only way that a court can accurately

determine what portions, if any, of the file are exempt from disclosure is by an in camera

review of [the files]." (quoting Newman v. King County, 133 Wn.2d 565, 583, 947 P.2d

712 (1997) (Alexander, J., dissenting). Even if the County correctly asserted attorney

work product privilege, the trial court properly granted Ames the remedy he sought—in

camera review of the contested e-mails.


       Because the County's opposition to Ames' motion was not substantially justified,

the County failed to make a clear showing that the trial court abused its discretion when

it awarded Ames attorney fees.

      The County also argues that its opposition to Ames' motion to file documents

under seal and for in camera review was justified because Dalsing's motion to compel

discovery rendered Ames' motion unnecessary. We disagree. The trial court is in the

best position to determine whether Ames' motion and the discovery documents he

submitted for the court's in camera review was necessary for a proper ruling on the



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discovery dispute. The July 22, 2013 written order granting Ames fees and costs

explains the court's rationale for its award:

   2. If the Court has the discretion to award attorney fees under the civil rules,
      was Pierce County's discovery conduct substantially justified?

           Pierce County's assertion of the work product privilege during Det.
       Ames's deposition and instructing him not to answer questions was not
       substantially justified. First, Det. Ames was given the impression months
       before his deposition that his emails would be produced. He provided
       copies to Pierce County's attorney in October 2012. Pierce County
       provided no privilege log to Plaintiff Dalsing until a month after Det.
       Ames's deposition and only after Det. Ames filed his motion seeking court
       review of the emails in question. Det. Ames had reasonable concerns that
       his professional reputation could be impaired by the non-disclosure of his
       emails and he had a right to seek relief from this Court. Pierce County did
       not seek a protective order until after Plaintiff Dalsing filed her motion to
       compel and after Det. Ames made it clear he intended to challenge the
       asserted work product privilege.

   3. Are there any other reasons why an award of attorney fees would be
      unjust?

            Pierce County argues that Det. Ames had no need to inject himself into
       the discovery dispute because Plaintiff Dalsing was contesting the work
       product privilege. But Det. Ames was in possession of information and
       evidence that the Court found important in rendering a decision on the
       discovery motions—information that Plaintiff Dalsing does not know and
       has no ability to present to the Court. Given Det. Ames's role in the
       underlying investigation and Pierce County's stance during discovery, the
       Court sees no injustice in awarding him the legal fees he incurred to
       litigate the work product privilege issue.

CP at 766. The court's thoughtful explanation of its reasoning makes clear that the

County's opposition to Ames' motion was not substantially justified and the award of

fees, "given the unique circumstances of this case," was not unjust. CP at 766. The

trial court's order granting in part and denying in part Dalsing's motion to compel shows

that the court reviewed Ames' motion and conducted an in camera review of "the




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documents submitted" by Ames.9 The court concluded these documents are

discoverable. The record here leaves no doubt that the trial court did not view Ames'

motion as duplicative or unnecessary.

         The trial court did not abuse its discretion in granting attorney fees and costs to

Ames.


         Reasonableness of Attorney Fees

         The trial court awarded Ames attorney fees and costs under CR 37 related to his

motion for in camera review in the amount of $4,749.99. The County disputes the

amount of the award, arguing that the billed services were not reasonable or essential

to the outcome and that the trial court's order lacks sufficient factual findings to support

the amount awarded. We disagree. Because Ames submitted sufficient documentation

demonstrating the reasonableness of the award, the trial court relied on this

documentation when it entered its findings and conclusions, and the court's findings of

fact and conclusions of law are adequate to support the amount awarded, we conclude

the trial court acted within its discretion when it entered the award for attorney fees and

costs.


         "[W]e review the reasonableness of an award of attorney fees and costs for an

abuse of discretion." Eugster, 121 Wn. App. at 815. But "the absence of an adequate

record upon which to review a fee award will result in a remand of the award to the trial

court to develop such a record." Mahler v. Szucs, 135 Wn.2d 398, 435, 957 P.2d 632


         9 Our determination is limited to the merits of the trial court's fees and cost award
to Ames. We express no opinion on the propriety of the April 22, 2013 discovery rulings
granting in part and denying in part Dalsing's motion to compel following in camera
review.

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(1998). "Under the lodestar method of calculating an award of fees, the court must first

determine that counsel expended a reasonable number of hours in securing a

successful recovery for the client and that the hourly rate counsel billed the client was

reasonable . . . The lodestar fee is the reasonable number of hours incurred in obtaining

the successful result multiplied by the reasonable hourly rate. The court presumes that

the lodestar amount is a reasonable fee." Bloor v. Fritz, 143 Wn. App. 718, 750, 180

P.3d 805 (2008). Accordingly, the trial court must enter findings of fact and conclusions

of law establishing an adequate record such that the reviewing court can determine

whether the billed services were "reasonable or essential to the successful outcome."

Mahler, 135 Wn.2d at 435.

       We conclude there is an adequate record here to support the reasonableness of

the award. The record shows the trial court actively and independently addressed the

question of what was a reasonable fee. The court wrote and entered six pages of

findings of fact and conclusions of law supporting its award of fees and costs and made

adjustments to amounts. Ames submitted his declaration, exhibits, and

contemporaneous time records maintained by counsel supporting the amount of the

award. The time records indicate by date, the type of work performed, the time billed,

the hourly rate, and the amount. Ames' declaration shows a total of 16.1 hours billed by

counsel and a total of $22.49 for costs.10 Ames' attorney also submitted a declaration

with exhibits stating that her hourly rates were comparable to services provided by the


       10 After reducing the total by $130 for a clerical error and adding $325 for
additional time devoted to the motion, the trial court awarded a total of $4749.99 instead
of the total stated in the time records.


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County in similar matters. She stated her hourly rate and that of her paralegal. She also

stated the hourly rates were similar to the rates for the attorney and paralegal selected

by the County to represent Ames.11

       The trial court reviewed Ames' documentation when it considered his motion for


attorney fees. The trial court noted in its written findings and conclusions that

documentation was sufficient to "determine the amount of time spent, the tasks

performed, and the hourly rate Det. Ames's attorney charged for the tasks performed."

CP at 766-67. The trial court also concluded "the hourly rate of $325 is consistent with

the market rates in this legal community for an attorney of Ms. Mell's experience." CP

at 767. The court also concluded "the time incurred for addressing the work product

privilege issue was reasonable and necessary." CP at 767.

       This record is adequate to support the award. The record and the trial court's

findings must demonstrate that its "discretion [was] exercised on articulable grounds."

Eugster, 121 Wn. App. at 816. The documents provided by Ames and his attorney were

sufficient to allow the court to conduct a critical review of the fees and costs requested

by Ames. The trial court did not simply accept unquestionably the fee declarations.

The trial court indicated in its written findings of fact and conclusions of law that it relied

on these documents when it found the attorney fees were "reasonable and necessary."

CP at 767.




       11 The County notes that Mell's rates are 50 dollars more than the rates for the
attorney and paralegal selected by the county. This does not mean, however, that
Mell's billing rates were unreasonable. The rates need only be comparable. In
response to the County's request that the trial court adjust the award, Ames submitted a
declaration demonstrating that Mell's rates were similar to other attorney rates in similar
matters.

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      The County argues the record is inadequate, relying on Eugster for the

proposition that a trial court commits reversible err by "merely concluding] the

attorney's fees sought... are reasonable and necessary." Eugster, 121 Wn. App. at

816. Eugster does not apply. There, the trial court erred because it failed to enter any

findings and conclusions in support of its determination of reasonableness. Eugster,

121 Wn. App. at 816. Instead, the trial court simply stated the fees were reasonable in

its oral ruling. Eugster, 121 Wn. App. at 816. Accordingly, the court vacated the award

and noted the trial court would have an opportunity to enter the appropriate findings

during the continuation of the case.12 Eugster, 121 Wn. App. at 816. As discussed

above, the trial court here entered written findings and conclusions stating the award

was reasonable and necessary. The trial court also indicated it based its review on the

documentation Ames provided. The trial court acted well within its discretion when it

granted Ames' motion for attorney fees and costs.

      Attorney Fees on Appeal

      Because Ames has prevailed on review, we grant his request for reasonable

attorney fees and costs on appeal under RAP 14.2, RAP 18.1(a), and CR 37(a)(4).

See, e.g., Eugster, 121 Wn. App. at 817 (granting the prevailing party attorney fees on

appeal under RAP 14.2, RAP 18.1(a), and CR 37(a)(4)). Fees and costs are granted

conditioned on compliance with RAP 18.1.




      12 Eugster involved an interlocutory appeal. Eugster, 121 Wn. App. at 816.
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                                      CONCLUSION


       Because the trial court acted well within its discretion when it granted Ames'

motion to file the e-mails under seal, and because the County's opposition to the motion

was not substantially justified, we conclude the trial court properly exercised its broad

discretion when it awarded Ames attorney fees. Further, the record and the trial court's

findings of fact and conclusions of law support the trial court's award. We affirm.




WE CONCUR:




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