[WSBAPT] Discovery in RCW Title 11 cases

[Dalynne Singleton]

Doug: In representing family members of decedents, I have subpoenaed banks to provide me with estate bank accounts along with bank accounts in the name of the decedent as of date of death and so far have not had push back from counsel representing the PR/Administrator.  I’ve attached the last one I served and received the requested documents which I shared with PR counsel as well.  There is no TEDRA proceeding in these cases but in this one, I had filed a motion to remove the PR which I agreed to suspend pending receipt of the bank records.  I am always up front about preparing and serving the CR 45 subpoenas and offer to share on CD Rom all the produced records.

Dalynne Singleton

Gourley Law Group
Snohomish Escrow
The Exchange Connection
1002 10th Street / PO Box 1091
Snohomish, WA 98291

360.568.5065
360.329.4079
360.568.8092  fax
dalynne at glgmail.com<mailto:dalynne at glgmail.com>

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From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Doug Schafer
Sent: Tuesday, July 5, 2016 4:15 PM
To: WSBA RPPT Probate & Trust Discussion Forum <wsbapt at lists.wsbarppt.com>; Solo & Small Firm WSBA Listserv <solo-and-small-practice-section at list.wsba.org>; Elder Law Section listserv <elder-law-section at list.wsba.org>
Subject: [WSBAPT] Discovery in RCW Title 11 cases

In a RCW Title 11 case, may a party, without first obtaining court approval, subpoena a nonparty to produce "documents and things"?  For example, in a probate or guardianship case (not one filed under RCW 11.96A.100).

Since 2006, RCW 11.96A.115 has forbidden "discovery" in Title 11 cases unless (1) "discovery" is permitted by court order or (2) the case was filed under RCW 11.96A.100.
http://app.leg.wa.gov/RCW/default.aspx?cite=11.96A.115

Part 5 of the Superior Court Civil Rules is titled "Depositions and Discovery (Rules 26 - 37)", so "discovery" might mean only activities described in CR 26 - 37.  But CR 26(a) describes the methods of obtaining "discovery" as including "production of documents or things".  On the other hand, CR 34(c) states that CR 34 (document production, etc., by parties) "does not preclude ... a subpoena issued pursuant to CR 45 against a person not a party for production of documents and things ...."

CR 45 allows an attorney of record of a party to issue a subpoena commanding any person (e.g., a nonparty) to produce documents and tangible things.  Does that constitute "discovery" that is limited by RCW 11.96A.115?  In other words, in a probate or guardianship case, must an attorney first obtain court permission before serving on a nonparty (e.g., a bank or care provider) a subpoena for records or things?

Doug Schafer, in Tacoma.

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