1 The Honorable Janet Helson

Noted for Hearing without Oral Argument: August 3, 11 and 16, 2017
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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
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IN AND FOR KING COUNTY
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CCD BLACK DIAMOND PARTNERS LLC, a No. 16-2-29091-4 KNT
Delaware Limited Liability Company,
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Plaintiff, ORDER RE SUBPOENAS TO
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NON-PARTIES KRISTEN
vs. BRYANT and BRIAN
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DERDOWSKI
CITY OF BLACK DIAMOND and BLACK
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DIAMOND CITY COUNCIL, a Public Agency,
and ERIKA MORGAN, PAT PEPPER AND
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BRIAN WEBER, Black Diamond City Council
Members,
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Defendants.
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THIS MATTER came before the Court on Plaintiffs motions to compel non-parties
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Kristen Bryant and Brian Derdowski to appear at their depositions and to produce documents
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in advance of their depositions pursuant to subpoenas, and on Brian Derdowskis motion to
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quash plaintiffs subpoena. The Court considered the records and files in this case and the
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following documents submitted specifically for the motions1:
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Materials submitted for each of the three motions referenced, and incorporated by reference, materials submitted
23 for the other two motions. To the extent that materials were not explicitly incorporated by reference, because of the
interrelation of the motions and arguments acknowledged by all counsel, the court has considered all of the
submitted materials as to all three motions, and issues this joint order addressing all three motions. The listed
24 materials are separated by motion herein solely for purposes of organization and ease of reading.
Judge Janet M. Helson
401 Fourth Avenue North, Room 2D
ORDER RE SUBPOENAS TO NON- Kent, WA 98032
Phone (206) 477-1367
PARTIES BRYANT AND DERDOWSKI - 1 helson.court@kingcounty.gov
1 Derdowski Motion to Quash

2 1. Non-party Brian Derdowskis Motion to Quash and supporting materials filed

therewith;
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2. Plaintiffs Response to Brian Derdowskis Motion to Quash;
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3. Declaration of Michele Earl-Hubbard filed August 10, 2017 and attachments thereto;
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4. Non-party Brian Derdowskis Reply in Support of Motion to Quash Subpoena Issued
6 by Plaintiff;

7 5. Brian Derdowskis Objections to Subpoena in a Civil Case served and filed with the
Court on August 1, 2017 and cover letter from Avi Lipman dated August 1, 2017;
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Plaintiffs Motion to Compel re Derdowski
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6. Plaintiffs Motion to Compel Production of Documents from Brian Derdowski
10 Pursuant to Subpoena;

11 7. Declaration of Michele Earl-Hubbard filed August 2, 2017 and attachments thereto;

12 8. Non-Party Response to Plaintiffs Motion to Compel Production of Documents from

Brian Derdowski Pursuant to Subpoena;
13 9. Declaration of Brian Derdowski in Support of Non-Party Response to Plaintiffs
Motion to Compel Production of Documents from Brian Derdowski Pursuant to
14 Subpoena;

15 10. Declaration of Avi J. Lipman in Support of Non-Party Response to Plaintiffs Motion

to Compel Production of Documents from Brian Derdowski Pursuant to Subpoena,
16 and Exhibits A-C thereto;

11. Plaintiffs Reply ISO Its Motion to Compel Production of Documents from Brian
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Derdowski Pursuant to Subpoena; and supporting materials, if any;
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12. Declaration of Michele Earl-Hubbard filed August 9, 2017 and Exhibits A-I thereto;
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13. Declaration of Beth Ford filed July 13, 2017 and attachments thereto;
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Plaintiffs Motion to Compel re Bryant
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14. Plaintiffs Motion to Compel Production of Documents from Kristin Bryant on
August 7, 2017 and Attendance at August 17, 2017 Deposition Pursuant to Subpoena
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Served June 30, 2017;
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15. Declaration of Michele Earl Hubbard in Support of Plaintiffs Motion to Compel
Production of Documents from Kristin Bryant on August 7, 2017 and Attendance at
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Judge Janet M. Helson
401 Fourth Avenue North, Room 2D
ORDER RE SUBPOENAS TO NON- Kent, WA 98032
Phone (206) 477-1367
PARTIES BRYANT AND DERDOWSKI - 2 helson.court@kingcounty.gov
1 August 17, 2017 Deposition Pursuant to Subpoena Served June 30, 2017 and Exhibits
A-E thereto;
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16. Non-Party[Kristen Bryant] Response to Plaintiffs Motion to Compel and Cross-
3 Motion to Modify;

4 17. Declaration of Kristen Bryant in Support of Response to Plaintiffs Motion to

Compel;
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18. Declaration of Gail M. Luhn in Support of Response to Plaintiffs Motion to Compel
6 and Exhibit 1 thereto;

7 19. Plaintiffs Reply In Support of Its Motion to Compel Regarding Kristen Bryant;

8 20. Declaration of Michele Earl-Hubbard and Exhibits A-K thereto; and

9 21. Bryant Surreply to Plaintiffs Reply re Motion to Compel Kristen Bryant to Produce
Documents and Appear for Deposition and Exhibit 1 thereto.
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Having considered the foregoing, and being fully advised on the matter, the Court hereby
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FINDS and CONCLUDES as follows:
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1. Witness Brian Derdowski has objected to production of the records requested in
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the subpoena issued to him. He initially agreed to appear at the deposition but contended he
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should not be made to produce the requested documents, or be allowed instead to produce an-
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as-yet-undefined and un-articulated subset of those documents. He now moves to quash the
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subpoena in its entirety.
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2. Witness Kristen Bryant has objected to production of the records requested in the
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subpoena issued to her. She has agreed to appear at her deposition.
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3. Both Mr. Derdowski and Ms. Bryant assert both that the production of the
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requested documents will be unduly burdensome and, more importantly, that requiring them to
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produce the records and/or appear at the deposition (in Mr. Derdowskis case) will infringe on
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their First Amendment rights.
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Judge Janet M. Helson
401 Fourth Avenue North, Room 2D
ORDER RE SUBPOENAS TO NON- Kent, WA 98032
Phone (206) 477-1367
PARTIES BRYANT AND DERDOWSKI - 3 helson.court@kingcounty.gov
1 4. The applicable test is summarized well in Eugster v. City of Spokane, 91 P.3d

2 117, 121, 121 Wash.App. 799, 807 (2004):

3 In the discovery context, Washington has established a three-part test for First
Amendment challenges based on associational privilege. First, the party asserting the
4 right is only required to show some probability that the requested disclosure will
harm its First Amendment rights. Snedigar v. Hoddersen, 114 Wash.2d 153, 158, 786
5 P.2d 781 (1990). Once this threshold is met, the burden shifts to the party requesting
discovery to establish (1) the relevance and materiality of the information sought, and
6 (2) that reasonable efforts to obtain the information by other means has been
unsuccessful. Id. at 164, 786 P.2d 781. Finally, even if both of these required
7 showings are made, the court must still balance the claim of privilege against the need
for disclosure to determine which is the strongest. Id. at 166, 786 P.2d 781.
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9 5. The facts in this case are unique and distinguishable from many of the cases cited

10 by the third party witnesses. Notwithstanding those distinctions, Mr. Derdowski and Ms. Bryant

11 have met the relatively low threshold requirement of showing some probability that the requested

12 disclosure will harm their First Amendment rights of association.

13 6. The burden then shifts to the plaintiff to show the relevance and materiality of the

14 information sought, and that reasonable efforts to obtain the information by other means have

15 been made and have been unsuccessful. As to the narrowed list of documents to be produced

16 and as to the taking of the witnesses depositions, the plaintiff has met its dual burden. In

17 contrast to the discovery requests in Eugster, which the court characterized as breathtakingly

18 broad, the discovery requests are (except as addressed below) narrowly tailored to produce

19 information that is critical, indeed essential, to the plaintiffs well-defined claims. Moreover,

20 plaintiff has engaged in extensive efforts to obtain the information elsewhere without success. It

21 has sought discovery from the City of Black Diamond, the individual defendants, and the

22 individual defendants telephone and internet service providers.

23 7. Both Mr. Derdowski and Ms. Bryant argue that the plaintiff has failed to

24 demonstrate relevance based on their interpretation of the OPMA only applying to in-person
Judge Janet M. Helson
401 Fourth Avenue North, Room 2D
ORDER RE SUBPOENAS TO NON- Kent, WA 98032
Phone (206) 477-1367
PARTIES BRYANT AND DERDOWSKI - 4 helson.court@kingcounty.gov
1 meetings with all three individual defendants present. Their reading of the OPMA is overly

2 narrow. Construed as they propose, the OPMA could be easily circumvented by serial individual

3 communications or use of a go-between.

4 8. Having determined that both parties have met their burdens, the court then must

5 balance the claim of privilege against the need for disclosure to determine which is the strongest.

6 As narrowed by the court below, considering all of the circumstances of this case, the court finds

7 that the need for disclosure outweighs the claim of privilege. The plaintiffs claim in this case is

8 that the individual defendants violated the OPMA by holding what amounted to secret meetings

9 to strategize about policy, to develop their shared positions, to develop legislative drafts, and to

10 prepare strategies for passing legislation all outside of the regular City Council and committee

11 meeting process. The plaintiff is not merely speculating, but has produced evidence suggesting

12 that the third party witnesses likely have information probative of that claim, and may have been

13 involved directly in discussions with the individual defendants regarding how the OPMA might

14 apply to the individual defendants activity. Under those circumstances, the asserted

15 associational privilege is outweighed by the need for disclosure.

16 9. In light of the First Amendment analysis above, the court likewise finds that, as

17 narrowed by the court, the discovery requests are not overly broad or unduly burdensome, even

18 considering that Mr. Derdowski and Ms. Bryant are non-parties.

19 Accordingly, the court hereby ORDERS that:

20 A. Mr. Derdowski and Ms. Bryant shall appear at their depositions, which currently

21 have been rescheduled to September 5 and 6, 2017 respectively.

22 B. Mr. Derdowski shall produce (or lodge as appropriate) by August 22nd, and Ms.

23 Bryant shall produce (or lodge as appropriate) by August 23rd the documents responsive to the

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Judge Janet M. Helson
401 Fourth Avenue North, Room 2D
ORDER RE SUBPOENAS TO NON- Kent, WA 98032
Phone (206) 477-1367
PARTIES BRYANT AND DERDOWSKI - 5 helson.court@kingcounty.gov
1 subpoenas as narrowed below (the numbering below refers to the ten (10) categories of

2 documents listed in the subpoena:

3 (1) Ms. Bryant and Mr. Derdowski need not produce communications between the

4 two of them unless those communications were ccd, bccd or subsequently forwarded

5 to one or more of the individual defendants. In addition, they need not produce any

6 communications sent to, or received from, the individual defendants City of Black

7 Diamond e-mail addresses.

8 (2) Responsive documents that were provided to the individual defendants through

9 their City of Black Diamond e-mail addresses need not be produced.

10 (3) Responsive letters or emails need not be produced if they were sent to the

11 individual defendants City of Black Diamond e-mail addresses.

12 (4) Responsive draft legislation not be produced if it was sent to, or received from,

13 the individual defendants City of Black Diamond e-mail addresses contemporaneously

14 or near-contemporaneously with their drafting.

15 (5) Responsive scripts need not be produced if they were sent to the individual

16 defendants City of Black Diamond e-mail addresses contemporaneously or near-

17 contemporaneously with their drafting.

18 (6) Responsive agendas need not be produced if they were sent to, or received from,

19 the individual defendants City of Black Diamond e-mail addresses contemporaneously

20 or near-contemporaneously with their drafting.

21 (7) Notes taken during meetings need only be produced if the notes were shared with

22 one or more of the individual defendants or if the witness was taking the notes as acting

23 staff or in some other official capacity, or at the request of one of the individual

24 defendants.
Judge Janet M. Helson
401 Fourth Avenue North, Room 2D
ORDER RE SUBPOENAS TO NON- Kent, WA 98032
Phone (206) 477-1367
PARTIES BRYANT AND DERDOWSKI - 6 helson.court@kingcounty.gov
1 (8) Notes need only be produced if they were shared with one or more of the

2 individual defendants or if at least two of the individual defendants were present (either

3 physically or by phone, Skype or other conferencing medium) during the meeting in

4 which the notes were taken.

5 (9) Mr. Derdowski and Ms. Bryant are not required to disclose campaign

6 contributions to the individual defendants.

7 (10) Mr. Derdowski and Ms. Bryant are not required to disclose campaign

8 contributions to the individual defendants.

9 C. To the extent Mr. Derdowski or Ms. Bryant assert that any of the

10 communications that the court has required to be produced are protected by attorney-client

11 privilege, those documents shall be lodged with the court.

12 D. To the extent that Mr. Derdowski or Ms. Bryant assert that any of the documents

13 required to be produced are, in whole or in part, personal in nature and unrelated to the City of

14 Black Diamond, or would compromise private information of a third party (other than Mr.

15 Derdowski or Ms. Bryant), those documents shall be lodged with the court.

16 E. The Court will examine the lodged records and determine whether any record

17 may be withheld or redacted and will advise the parties and Mr. Derdowskis or Ms. Bryants

18 counsel of its ruling.

19 F. The non-party defendants requests for attorneys fees and costs associated with

20 the document production are reserved for later determination.

21 DATED this 15th day of August, 2017.

22 Signed electronically and e-filed

____________________________________
23 The Hon. Janet M. Helson

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Judge Janet M. Helson
401 Fourth Avenue North, Room 2D
ORDER RE SUBPOENAS TO NON- Kent, WA 98032
Phone (206) 477-1367
PARTIES BRYANT AND DERDOWSKI - 7 helson.court@kingcounty.gov
 King County Superior Court
Judicial Electronic Signature Page

Case Number: 16-2-29091-4

Case Title: CCD BLACK DIAMOND PARTNERS VS BLACK DIAMOND
CITY OF ET AL
Document Title: ORDER RE BRYANT AND DERDOWSKI SUBPOENAS

Signed by: Janet Helson

Date: 8/16/2017 9:00:00 AM

Judge/Commissioner: Janet Helson

This document is signed in accordance with the provisions in GR 30.

Certificate Hash: 9EA02A1ED5E4EF3D2A4D7D25146B24D530063ED6
Certificate effective date: 5/1/2015 8:14:53 AM
Certificate expiry date: 5/1/2020 8:14:53 AM
Certificate Issued by: C=US, E=kscsefiling@kingcounty.gov, OU=KCDJA,
O=KCDJA, CN="Janet Helson:
4OQ4Hanx4xG2BZv/HV1GsA=="

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