RED FLAGS From Litigation Related Public Records Requests

Transcription

1 Washington Cities Insurance Authority RED FLAGS From Litigation Related Public Records Requests October 5, :30 am Noon Coeur d Alene, Idaho

2 Today s Presenters Jeff Myers, Attorney Law, Lyman Daniels, Kammerrer & Bogdanovich WCIA Regional Defense Attorney Quinn Plant, Attorney Menke, Jackson, Beyer, Ehlis & Harper WCIA Regional Defense Attorney & City Attorney Ramsey Ramerman, Attorney City of Everett Everett City Attorney and Past WAPRO President

3 Today s Agenda 9:30 10:45 Recognizing Public Records Act Requests as Free Legal Discovery Distinguishing the Differences in Discovery vs. P R A Disclosure Rules Safeguarding Attorney Client Privileges 10:55 11:30 Teaming the Defense Attorney with the Public Records Officer to Identify Roles What if the Plaintiff Wants Every Record? Settlement Implications 11:30 Noon Communicating with Your City Council Mastering Media Response

4 RECOGNIZING PRA REQUESTS AS FREE LEGAL DISCOVERY PRA the Indiscreet Cover for Discovery Work with your Public Records Officer Make sure your Public Records Officer is trained Make sure requests go through your public records officer

5 USE OF THE REQUEST PROCESS Overly Broad Requests All records to, from, or in any way relating to or referencing any of the following, including but not limited to records from, or in any way relating to or referencing any employees, appointees, elected officials, individuals, participants, tribunals, committees, affiliations, commissions, groups and members thereof and other persons specified From AWC publication Public Records: A balancing act for cities (December 2010)

6 USE OF THE REQUEST PROCESS Request for confidential materials - All s between the City Attorney and the City Council concerning Employee Requests - Employee making request about other employees or management

7 USES OF THE REQUEST PROCESS Internal Investigation/Disciplinary Records - Bellevue John Does 1-11 v. Bellevue School District, 164 Wn.2d 199 (2008) - Morgan v. City of Federal Way, 166 Wn.2d 747 (2009) - Bainbridge Island v. Koenig, 2011 WL (2011)

8 REQUESTS FROM LAWYERS City Manager City of XXXXXX MENKE JACKSON BEYER EHLIS & HARPER, LLP Attorneys at Law Re: Request for Public Records Our file no Dear Mr. Smith, As you know, our law firm represents Susan Smith. Because of that representation, I am directing a request for public records pursuant to RCW to your attention for the following...

9 DISCRETE INCIDENTS

10 INMATE REQUESTS Joe Johnson, A.H.C.C./Legal Mail P.O. Box 2049/LB 47 Airway Heights, WA Dear Public Records Officer, I wish to request the following records under the PRA, Chapter RCW, and the Freedom of Information Act

11 OF CONCERN? A. Any s from or to the following individuals for the last four years... Also any BCC copies to or from the same individuals. (10 names) B. And s to or from the following employees to the above individuals on city computers, whether using their city s or other s accounts. (15 names) C. Any s to or from XXXX and XXXX to other persons referencing the police department endorsement of XXXX for city council.

12 RECOGNIZING PRA REQUESTS AS FREE LEGAL DISCOVERY Work with your Public Records Officer. Advocate for training for your Public Records Officer. Coordination between City Attorney, Defense Counsel and PRO.

13 DISTINGUISHING THE DIFFERENCES IN DISCOVERY VS. P R A DISCLOSURE RULES Discovery v. Requests Define What Can Get You Into Trouble Types of Requests Public Records Subpoena duces tecum Request for Production Other Methods of Obtaining Records (personnel files, juvenile records, information requests)

14 DISTINGUISHING THE DIFFERENCES IN DISCOVERY VS. P R A DISCLOSURE RULES When is Discovery More Advantageous for Requester and Agency? Reasonable Response Matrix Next slide illustrates Public Records Request Timeline vs. Discovery Timeline

15 Tool Timeline Scope Enforcement Tool PRA 5 days/ Reasonable Public records/ exemptions & privileges CR days Relevance/ privileges Subpoena 5 days Relevance/ privileges Lawsuit; mandatory fees & penalties Motion; discretionary fees Motion; discretionary fees RCW Reasonable Own personnel file/work prod. 7.69A.030(4) None stated Collective Bargaining None stated Child s police file/ none Relevant/ privileges None stated None stated (but PRA) None stated (but PRA)

16 DISTINGUISHING THE DIFFERENCES IN DISCOVERY VS. P R A DISCLOSURE RULES Negotiating with Requesters PRA 5 Day Turnaround Times Estimate Inform all staff of timetable obligations West v. DNR: Deputy Director of DNR Elected Port Commissioner Request

17 SAFEGUARDING ATTORNEY CLIENT PRIVILEGES How Does the PRA Protect Against Disclosure of Privilege Material? When PRA Requires a Legal Review How Do You Safeguard Attorney Client Privileges? PRA, Staff & Council Need to Know to Tread Cautiously CA got to get involved right away to fend off potential litigation Discovery Created and Denied based on Attorney Client Privileges

18 SAFEGUARDING ATTORNEY CLIENT PRIVILEGES Establishing Basis for Claiming Work Product Exemption Waiver of Privilege Inadvertent Waivers Subject matter waiver

19 WAIVERS OF ATTORNEY-CLIENT PRIVILEGE Disclosing a privileged communication or raising a claim that requires disclosure of a protected communication results in waiver as to all other communications on the same subject. United States v. Nobles, 422 U.S. 225, (1975); Weil v. Inv./Indicators, Research & Mgmt., 647 F.2d 18, 24 (9th Cir.1981) Waiver applies to all other communications on the same subject. United States v. Plache, 913 F.2d 1375, 1380 (9th Cir.1990)

20 SCOPE OF SUBJECT-MATTER WAIVER Waiver applies only as to communications about the matter actually disclosed. Weil 647 F.2d at 25. Disclosure of attorney memorandum waived privilege as to related issues. Knudsen v. City of Tacoma, 2008 WL (W.D. Wash. 2008). Scope determined based on court s view of fairness and function of documents disclosed. Davis v. City of Seattle, 2007 WL (W.D. Wash. 2007). May be broadly interpreted. Lindell v. City of Mercer Island, 2011 WL , (W.D. Wash 2007).

21 SCOPE OF WAIVER OF ATTORNEY-CLIENT PRIVILEGE [S]ubject matter waiver is limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner. Confederated Tribes of Chehalis Reservation v. Thurston County Bd. of Equalization, C BHS, 2009 WL (W.D. Wash. Nov. 12, 2009)

22 INADVERTENT WAIVERS OF PRIVILEGE Sitterson v. Evergreen School District, 147 Wn.App. 576 (2008) 5 Factor Test to Determine Waiver of Exemptions or Privilege by Inadvertent Disclosure Reasonableness of precautions taken to prevent disclosure; Amount of time taken to remedy the error; Scope of discovery or public records request; Extent of Disclosure; and Overriding Issues of Fairness.

23 TIPS TO PROTECT PRIVILEGED MATERIAL 1. Label documents as Confidential Attorney Client Privileged or Work Product 2. Document scope of attorney assignment -- Defend Litigation -- Ask or legal advice on subject. 3. Articulate and document when litigation is anticipated or threatened.

24 TIPS TO PROTECT PRIVILEGED MATERIAL 4. Have attorneys hire any independent investigators to support their legal advice document that work is for litigation. Soter v. Cowles Publishing Co. 5. Have the attorney working on issue review documents for privilege. Ask WCIA for advice & assistance. 6. Use Disclaimers to protect against inadvertent disclosure: The records disclosed herein are not intended to waive the attorney-client privilege or any other applicable privilege recognized by law. If you receive records that contain privileged information, you are notified that any review, distribution, dissemination or copying is prohibited and are directed to notify the sender and delete the privileged record.