No. 58292-5-I.The Court of Appeals of Washington, Division One.
July 30, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-2-19130-1, Christopher A. Washington, J., entered May 11, 2006.
Affirmed by unpublished per curiam opinion.
PER CURIAM.
The trial court is accorded broad discretion to regulate discovery violations and abuse by means of sanctions. Because the circumstances here did not impose a duty on respondent State Farm Insurance Companies to supplement discovery responses with two documents that it later acquired, the trial court did not abuse its discretion in denying appellant Stanley Adolfson’s motion for sanctions. Accordingly, we affirm.
FACTS
In 2003, Stanley Adolfson filed a claim for theft of personal property under a homeowner’s policy issued by State Farm Insurance Companies. Adolfson alleged that property worth $126,000 had been stolen from his home in Duvall and that the items were taken by several individuals, including Susan Ortega, who had trespassed on the property. Adolfson also reported the theft to the police. In February 2004, State Farm denied the claim, citing a policy exclusion for loss caused by tenants or persons regularly residing at the insured location. State Farm also alleged the policy was void because Adolfson made “material misrepresentations” in conjunction with his claim.
In April 2004, Adolfson filed this action against State Farm, alleging claims for coverage, bad faith, and Consumer Protection Act violations. In March 2005, Adolfson propounded his first set of interrogatories and requests for production. The trial court eventually dismissed the bad faith and CPA claims on summary judgment, and the coverage dispute proceeded to trial.
Shortly before trial was scheduled to begin on January 23, 2006, Adolfson moved to exclude Susan Ortega as a witness or, in the alternative, for a trial continuance. Ortega, an acquaintance of Adolfson’s, maintained that she had lived in Adolfson’s home as a renter just before the theft and also claimed some knowledge of the circumstances surrounding the theft. Adolfson argued that State Farm had failed to supply updated contact information for Ortega in a timely manner. Following a lengthy argument, the trial court denied Adolfson’s request for monetary sanctions, but continued the trial for almost two months to permit Adolfson to depose Ortega. That deposition occurred on February 6, 2006. Following a trial from March 6, 2006, through March 20, 2006, the jury returned a verdict of $45,000 in Adolfson’s favor.
During the course of the trial, Adolfson twice moved for the imposition of sanctions for State Farm’s failure to timely supplement its original discovery responses with two specific documents: (1) a follow-up police report by King County Sheriff’s Office detective Steve Soule, the primary investigating officer for Adolfson’s theft report (Soule report); and (2) a handwritten statement by Susan Ortega, taken by Det. Soule during his investigation (Ortega statement). Adolfson’s counsel obtained the Ortega statement during Ortega’s deposition on February 6, 2006. Counsel learned of the Soule report on the third day of trial and obtained a copy from State Farm’s counsel on March 10, 2006. Counsel for Adolfson declined State Farm’s offer to stipulate to the admission of the Soule report. State Farm’s counsel informed the trial court that he had obtained both the Soule report and the Ortega statement as part of a public records request from the King County Sheriff’s Office in the fall of 2005.
Adolfson sought monetary sanctions totaling $1.3 million dollars for State Farm’s failure to timely turn over copies of the Soule report and the Ortega statement. The trial court denied the motions by written order entered on May 11, 2006. The court’s order expressly relied on the reasoning discussed during the extensive oral arguments on the motions, including the court’s determination that the documents were not subject to the supplementation requirements under the civil rules and that the documents were not knowingly concealed.
DECISION
On appeal, Adolfson contends the record fails to support the trial court’s refusal to impose sanctions. He argues that State Farm committed clear discovery violations by failing to turn over, in a timely manner, copies of the Soule report and the Ortega statement and that the violations mandate sanctions as a matter of law.
The trial judge is necessarily accorded wide latitude in determining the appropriateness of sanctions for discovery abuse. See Wash. State
Physicians Ins. Exch. Ass’n v. Fisons, 122 Wn.2d 299, 338-39, 96 P.3d 420 (2004). We therefore review sanction decisions for an abuse of discretion. Fisons, 122 Wn.2d at 338. An abuse of discretion occurs if the trial court decision is manifestly unreasonable or based on untenable grounds. Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115
(2006).
Adolfson’s requests for production expressly sought, among other things, any investigative reports prepared by Det. Soule and any statements by Susan Ortega. There is no allegation or evidence that State Farm’s responses to these requests were incorrect or incomplete when made. Rather, Adolfson maintains that State Farm had a continuing duty to supplement its earlier responses immediately upon acquiring the Soule report and the Ortega statement.
A party’s duty to supplement previous responses to discovery requests is defined in CR 26(e), which provides that a party who has responded completely is under no duty to supplement the response with information acquired later except as follows:
(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.
(2) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which (A) he knows that the response was incorrect when made, or (B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
(3) A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.
The two documents at issue did not involve questions addressed to the identity and location of persons or the identity of expert witnesses under CR 26(e)(1). Nor does State Farm’s subsequent acquisition of the two documents from a third party render its initial response “incorrect when made.”
Adolfson contends that State Farm’s initial responses essentially warranted that it was providing all of Soule’s reports and Ortega’s statements, making the responses “no longer true” once State Farm received the additional documents. But this interpretation of the language of State Farm’s responses is not persuasive. Moreover, CR 26(e)(2)(B) also requires that the circumstances indicate the failure to amend the response “is in substance a knowing concealment.” State Farm’s counsel explained to the trial court that when he obtained the documents from the King County Sheriff’s Office, he gave no specific thought to supplementing State Farm’s original response because the documents were public records and therefore equally available to everyone. Nothing in the record supports an inference that counsel’s actions amounted to a knowing concealment.
Adolfson points to the fact that before trial, his counsel had twice requested copies of all relevant documents from the King County Sheriff’s Office, but did not receive either the Soule report or the Ortega statement. Adolfson’s requests apparently occurred several months before State Farm’s public records request. But the unexplained failure of the Sheriff’s Office to supply the documents to Adolfson does not support an inference of knowing concealment by State Farm. Adolfson also relies on language in his original request for production that purports to impose a continuing duty to supplement answers with new information. But he cites no authority supporting the proposition that a party’s inclusion of such language in discovery requests, without more, imposes a sanctionable duty on the other party to supplement answers that goes beyond the requirements of CR 26(e). CR 26(e)(3) expressly provides that a duty to supplement responses “may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests of supplementation of prior responses.” Adolfson made no new requests for supplementation or attempted to take advantage of the other methods for supplementation set forth in CR 26(e)(3).
Finally, Adolfson relies heavily on the decision in Roberson v. Perez, 123 Wn. App. 320, 96 P.3d 420 (2004), in which the appellate court upheld the imposition of severe sanctions for discovery violations, including the vacation of two jury verdicts. But the violations in Roberson involved the defendants’ failure to comply with discovery requests and a trial court order compelling discovery. Roberson, 123 Wn. App. at 332. Because Roberson does not address the duty to supplement discovery responses that were complete and correct when made, it provides no support for Adolfson’s arguments.
In summary, the record supports the trial court’s determination that the civil rules did not impose a duty on State Farm to supplement its initial discovery responses with the Soule report and the Ortega statement and that State Farm’s actions did not amount to a knowing concealment. Accordingly, the trial court did not abuse its discretion in denying Adolfson’s motions for sanctions. Because there were no discovery violations, we do not address the other issues raised by the parties, including prejudice and attorney work product. Adolfson’s request for attorney fees on appeal is denied.
Affirmed.