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CR 26 - General Provisions Regarding Discovery

Comments for CR 26 must be received no later than April 30, 2009.

GR 9 COVER SHEET
Suggested Amendment
SUPERIOR COURT CIVIL RULES (CR)
CR 26 – General Provisions Governing Discovery
(Clarifying procedures for assertion of privilege or of work-product after production in discovery)
Submitted by the Board of Governors of the Washington State Bar Association

A. Purpose: Federal Rule of Civil Procedure 26(b)(5)(B) establishes what is often referred to as a “claw back” procedure. Through it, a party that has inadvertently disclosed privileged or trial-preparation materials through discovery may alert the receiving party of that event. After being notified, the receiving party must take steps to return, destroy, or sequester the subject material, and may not use or disclose it until the disclosing party’s claim of protection is resolved. The federal rule is procedural only; it does not purport to alter the legal standards applicable to privileges or their waiver.

The suggested amendment to Washington’s CR 26 would add a new subsection (b)(6) that is functionally identical to the federal “claw back” rule. A concurrent proposal to amend CR 45 would, as in its federal counterpart, restate this rule in the context of documents produced in response to a subpoena.