Search Articles By Category or Keyword

Are Emails Subject to a Protective Order Trumped by the Public Records Act?

Posted on August 15th, 2014

In an earlier blog we discussed how the public has a presumptive right of access to judicial proceedings. Turning on a similar note, we now look to the question of whether the Public Records Act (PRA) can allow disclosure of emails that are subject to a protective order or whether that information is exempted. The court took up this issue in Washington State Department of Transportation v. Margarita Medoza De Sugiyama, No. 43859-3-II (Wash. App. July 29, 2014).

Margarita Mendoza de Sugiyama (Sugiyama) brought an employment discrimination, whistleblower retaliation, and harassment lawsuit against Washington State Department of Transportation (DOT).

Sugiyama made a discovery request, seeking e-mail communications “to, from and/or copied to each of” 12 individuals from 2007 to February 2012. DOT’s information technology specialist identified over 174,000 emails that DOT would have to produce to respond to Sugiyama’s request. The court denied Sugiyama’s request as overly broad and unduly burdensome.

Next, Sugiyama made a PRA request for the same 174,000 plus emails. DOT filed a complaint and petition for declaratory judgment and injunctive relief, which created a lawsuit separate from the employment litigation.

DOT contended:

1. The superior court’s protective order in the employment litigation created a public records exemption for the same records when sought by the same party through the PRA; and

2. DOT should be granted temporary and permanent injunctions barring Sugiyama from circumventing the discovery order in the employment action by seeking the same records under the PRA.

The Court of Appeals upheld the superior court’s grant of Sugiyama’s Motion for Reconsideration, but issued a dispositive distinction, stating:

1. Though limited agency resources and control over pretrial discovery in civil litigation is a vital government interest for the courts, these considerations only sometimes outweigh the PRA’s broad policy in favor of disclosing records;

2. DOT would have been subject to the same burden had Sugiyama requested the emails before any controversy with DOT was reasonably anticipated or had another member of the public made the same request under the PRA; and

3. The legislature intended to exempt under the PRA only those records that would not be available to any party under universally applicable rules of discovery and as such, only emails normally privileged in the civil discovery context (including attorney-client and attorney work-product privileges generally available to all litigants) would be exempt.

Did you know: A recent survey showed that deleted mailboxes or emails is the most common data restoration request of IT administrators.

ILS – Plaintiff eDiscovery Experts

Leave a Reply

Your email address will not be published. Required fields are marked *