C-Tran sues to hide one forwarded email

Accidental mishandling may remove privilege; judge is asked to decide

By Stephanie Rice, Columbian Vancouver city government reporter

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C-Tran will seek a court order to keep the city of Vancouver from releasing an email C-Tran argues should be exempt from public disclosure laws.

The Columbian, which has a standing request for Vancouver City Council email under the Public Records Act, was named as a defendant in the lawsuit as required under the PRA.

C-Tran attorney Tom Wolfendale, in a request for an injunction filed Wednesday in Clark County Superior Court, wrote that a Feb. 6 email was clearly labeled as covered by attorney-client privilege and should not be made public.

Judge Robert Lewis is expected to rule on the matter May 2.

Wolfendale wrote in his injunction request that he sent the email to Vancouver Mayor Tim Leavitt, who serves on the C-Tran Board of Directors. The next day, Leavitt forwarded the email to City Manager Eric Holmes.

That forwarding qualified the email as one to be given to The Columbian under its standing request. The city notified Wolfendale it would be releasing the email, prompting the request for the injunction after The Columbian declined to waive its request.

A single member of the C-Tran Board of Directors lacks the authority to waive attorney-client privilege, Wolfendale wrote, and said the content of the email relates to "a (legal) controversy involving C-Tran."

C-Tran "has no adequate remedy at law to prevent the harm that will befall it should the city release C-Tran's privileged email to The Columbian," Wolfendale wrote.

In a written declaration filed in court, Holmes said he didn't read the email after he saw that it was labeled privileged communication. In his written declaration, Leavitt said he should not have forwarded the email to Holmes.

"I forwarded the email as an oversight," Leavitt wrote. "Because I serve two municipalities, I temporarily forgot (Holmes) is not part of the C-Tran attorney-client privilege relationship."

Attorney Eric Stahl from the Seattle firm Davis Wright Tremaine filed a response on behalf of The Columbian.

Stahl asked Lewis to determine whether C-Tran has met its burden of proof in establishing that the email should be exempt. The city apparently has decided the email should be released, Stahl wrote.

Since The Columbian has not seen the email, it's not in a position to say whether it should be exempt, Stahl wrote. Even if Lewis finds the email should remain private, Stahl asked the judge to consider whether attorney-client privilege was waived once Leavitt forwarded the email to Holmes.

Finally, if Lewis determines the email should not be released, Stahl asked that if portions of the email are not privileged then those should be released.