Court hears dispute over scope of discovery in Beretta v. State of Washington

At a hearing in Other Court, Assistant Attorney General Bridal Linehan argued the Washington State Department of Transportation (DOT) was the only party accused of negligently designing the roadway and therefore the only agency required to respond to plaintiffs' discovery. "Plaintiff cannot preempt and override statute and case law simply by virtue of naming the State of Washington in the caption of a lawsuit," Bridal Linehan told the court, saying DOT had answered the complaint, produced records in its possession and lodged objections as to materials it does not control.

The dispute centers on whether a trial court order compelling production effectively requires DOT to collect responsive documents from nearly 200 other state agencies or whether plaintiffs must either name those agencies as defendants or pursue subpoenas. "In order to comply with the trial court order as it currently stands, DOT would have to collect responsive records from nonparty state agencies without any legal authority or ability to do so," Bridal Linehan said, urging discretionary review under the court's interlocutory-review rules.

Attorney Mohamudi, representing officer Kevin Barreta, disputed that framing and argued the rules of discovery require the state to produce what is "available to the party." "The state controls the state's documents," Mohamudi said, adding that the attorney general's office represents the state and that plaintiffs rely on the sovereign's centralized systems (such as risk-management intake) to ensure notice and access. Mohamudi used a corporate analogy, saying a rule that fractures discovery by internal agency lines would impose undue burdens on plaintiffs and hamper access to the courts.

Both sides pointed to the civil-discovery rules. Bridal Linehan cited CR 33, 34 and 36 and argued those devices apply only to parties and thus cannot be used to compel nonparties to respond; Mohamudi countered that Rule 34 looks to documents within the party's possession, custody or control and that the state must account for records held across agencies when it is sued.

The lawyers also debated process: Bridal Linehan noted DOT had produced records in its custody and objected where it lacked control, and said plaintiffs could amend their complaint if they wished to add the Washington State Patrol or another agency as a defendant. Mohamudi said DOT had an opportunity to move for a protective order and file declarations explaining burden but had not done so in a way that would justify interlocutory reversal.

The court heard argument on whether the trial court's order to compel was an obvious error warranting discretionary interlocutory review and whether a protective-order procedure, rather than a rule change, is the proper mechanism to address burden. After argument, the case was submitted for decision and the court recessed.

The next procedural step is the court's ruling on the petition for discretionary review or request presented at the hearing; no ruling was announced from the bench at the hearing's close.