affirming finding of work product when the court had several examples of materials sought
How later courts described this case
- affirming finding of work product when the court had several examples of materials sought
- 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)
- test is whether, in light of the document and the facts, the document can fairly be said to have been prepared or obtained because of the prospect of litigation
- evidentiary error prejudices defendant if, within reasonable probabilities, it materially affects outcome of trial
Written by the judges who cited it.
The opinion
Madsen, C.J.
¶49 (concurring) — I agree with the result reached by the majority. However, I write separately because I continue to believe, as I explained in my concurrence in In re Firestorm 1991, 129 Wn.2d 130,153 , 916 P.2d 411 (1996) (Madsen, J., concurring), that when CR 26(b)(4) states that its provisions are “[s]ubject to the provisions” of CR 26(b)(5), it means that insofar as provisions in CR 26(b)(5) are different from those in CR 26(b)(4), CR 26(b)(5) controls. It does not mean that if CR 26(b)(5) applies to discovery sought from an expert, then CR 26(b)(4) cannot apply at all. Instead, by its plain language and the purposes of the two subsections, when discovery is sought from experts the work product rule of CR 26(b)(4) is not thereby rendered wholly irrelevant and inapplicable. Rather, a party’s expert might possess information that may and *413 should be protected by the work product doctrine and CR 26(b)(4)’s requirement of a showing of “substantial need.”
¶50 Although I concur with the result in this case, we should not be surprised when we are presented with a case where, following the majority’s interpretation of CR 26, we are led to an anomalous and unfortunate result.