(concurring) — While I concur in the result of the majority opinion, I write separately to emphasize our strong policy on discovery abuse. The majority opinion does not adequately convey why Norman Buske felt compelled to contact attorneys Richard Eymann and Steve Jones. The factors which compelled Buske to contact Eymann and Jones may be relevant to the trial court’s consideration, on remand, of their conduct.
The present case arises from firestorms in Northeastern Washington in October 1991. Over 90 wildfires ignited because of dry weather conditions and high winds. Washington Water Power Company (Water Power), Inland Power & Light Company (Inland Power), and other utilities contacted the law firm of Paine, Hamblen, Coffin, Brooks & Miller (Paine Hamblen) to direct their investigative efforts into the origin of the wildfires. Pursuant to a joint representation agreement, which is not of record, Paine Hamblen organized teams, consisting of at least one lawyer, utility representatives, and consulting experts, to investigate each utility’s potential liability for the fires. Buske was one of the consulting experts retained by Paine Hamblen.7
Buske was assigned to a team with a Paine Hamblen lawyer and Inland Power employees to investigate fires near Inland Power facilities. On October 17, 1991, Buske’s team flew by Inland Power helicopter to investigate an *147Inland Power line at the most upwind site of one of the fires, known as the Chattaroy fire, which was still burning. After his investigation, Buske determined Inland Power’s line was not involved in the Chattaroy fire. However, Buske decided to investigate a nearby Water Power line which was directly over the most upwind spot from which the fire spread. Thinking he was employed by Inland Power, Buske believed an investigation of this line might be relevant to ruling out Inland Power’s equipment as the cause of the Chattaroy fire. Buske’s observations led him to conclude the Water Power line was the cause of the Chattaroy fire. He documented his findings in notes and took pictures of the Water Power equipment he believed was responsible for the fire.
Buske reported his findings to a Paine Hamblen lawyer, who relayed the information by telephone to other unnamed parties. Paine Hamblen instructed Buske to stop looking at the Water Power line and the team left the location before Buske could locate any other physical evidence on the ground under the Water Power line. Nevertheless, Buske returned to the site on two other occasions, October 18, 1991, and November 1, 1991, to confirm his observations. On each occasion, Paine Hamblen ordered Buske to cease investigating before he could locate any physical evidence. However, Buske took pictures and kept notes of his observations on each of these occasions.
On November 1, 1991, Buske noted the defective Water Power equipment had been replaced. When the investigative teams met, Buske presented his evidence relating to the origin of the Chattaroy fire and urged it be given to the Department of Natural Resources, which was investigating the cause of the firestorm fires. Buske’s information was never disclosed to the Department. No one asked Buske for his pictures or copies of his notes.
Some two years later, after lawsuits were filed for damages arising out of the 1991 fires, Buske heard press reports in which counsel for the plaintiffs asked for information regarding the origin of the Chattaroy fire. Buske *148sought out his former Paine Hamblen contact and expressed his belief that he had an ethical obligation to provide the information to counsel for the plaintiffs. Buske was later advised by Paine Hamblen lawyers he could not speak with counsel for the plaintiffs or disclose any of the information he had discovered about the origin of the Chattaroy fire. At this time, Inland Power had not been named as a defendant in the lawsuit by the plaintiffs.
It was only after this direction from counsel for Inland Power and Water Power that Buske sought out counsel for the plaintiffs in order to disclose the information in his possession.
ANALYSIS
The majority is correct in determining Eymann and Jones did not conform their conduct to the requirements of CR 26(b)(5). They interviewed Buske ex parte, without notice to opposing counsel and without court sanction, and reviewed the transcripts of the interviews, and apparently edited them as well. Washington has a strong policy against ex parte contact between counsel and the experts of opposing parties. In Loudon v. Mhyre, 110 Wn.2d 675, 677-78, 756 P.2d 138 (1988), we held ex parte interviews of treating physicians when the plaintiff has not waived the physician-patient privilege are prohibited as a matter of public policy.
Eymann and Jones had the option here of deposing Buske or examining him on the record before a superior court judge rather than taking matters into their own hands and interviewing Buske ex parte. They did not seek an advisory ruling with respect to the ethics of contacting Buske, as did the attorneys at Winston & Cashatt. There is no indication in the record Eymann and Jones could not have immediately sought a ruling from the trial court on *149Water Power’s anticipated claims of privilege, allowing them to depose Buske. Their conduct violated CR 26(b)(5).8
However, the trial court’s decision to disqualify Eymann and Jones was an excessive sanction. Alternative sanctions were not considered by the trial court,9 and it is highly likely Buske’s evidence would have been discoverable in any event. Additionally, defense counsel waited from October 1993 until July 12, 1994 to file a motion to disqualify counsel. In the meanwhile, counsel for the plaintiffs performed substantial work for the plaintiffs. The delay of defense counsel in seeking to file a motion to disqualify certainly waived any claim they were prejudiced by the actions of Eymann and Jones. Defense counsel had an affirmative obligation to seek a motion to disqualify immediately rather than waiting for a prolonged period of time to act. First Small Business Inv. Co. v. Intercapital Corp., 108 Wn.2d 324, 337, 738 P.2d 263 (1987).
The majority correctly determines the sanction of disqualification was excessive, but does not reference the circumstances which caused Buske to seek out counsel for the plaintiffs. Buske had a real fear the important information in his possession would be suppressed. Paine Hamblen allegedly told Buske his observations and opinions would be sealed. Clerk’s Papers at 96-97.
The Buske notes, pictures, and statements as to the origin of the Chattaroy fire appear highly relevant. The plaintiffs may be able to show this material and information would not be available through other means without *150hardship. As a result, the Buske materials and opinions likely were discoverable under the rules relating to work product and facts and opinions held by nontestifying experts. See CR 26(b)(4), (5); 4 Lewis H. Orland & Karl B. Tegland, Washington Practice: Rules Practice, at 34-35, 40-41 (4th ed. 1992). As Orland and Tegland point out, these rules do not bar discovery where the party seeking discovery could not send its own expert to an accident scene observed by the other party’s nontestifying expert prior to physical changes or removal of defective equipment. Id. at 40-41; see Hartford Fire Ins. Co. v. Pure Air on the Lake Ltd., 154 F.R.D. 202 (N.D. Ind. 1993) (disallowing discovery sought by plaintiff where cave-in site "swarmed” with plaintiffs’ own experts; contrasting situation where plaintiff’s expert did not have access to site containing evidence of causation until physical conditions changed).
Washington has a long, clear tradition of condemning gamesmanship in civil discovery. In Gammon v. Clark Equip. Co., 38 Wn. App. 274, 686 P.2d 1102 (1984), aff’d on other grounds, 104 Wn.2d 613, 707 P.2d 685 (1985), then Chief Judge Durham wrote:
The Supreme Court has noted that the aim of the liberal federal discovery rules is to "make a trial less a game of blind man’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” United States v. Procter & Gamble Co., 356 U.S. 677, 682, 2 L. Ed. 2d 1077, 78 S. Ct. 983 (1958). The availability of liberal discovery means that civil trials
no longer need be carried on in the dark. The way is now clear . . . for the parties to obtain the fullest possible knowledge of the issues and facts before trial.
Hickman v. Taylor, 329 U.S. 495, 501, 91 L. Ed. 451, 67 S. Ct. 385 (1947).
Gammon, 38 Wn. App. at 280. In Gammon, the Court of Appeals affirmed sanctions imposed against a party which failed to disclose pertinent information pertaining to the *151safety record of a certain type of equipment. The court indicated a unilateral decision by a party on the relevance of data within the scope of a discovery request was inappropriate. Gammon, 38 Wn. App. at 281. The court held a trial court sanction of $2,500 against the defendant was insufficient, and ordered a new trial, stating:
An award of $2,500 is cheap at twice the price in the context of a $4.5 million wrongful death case. Approval of such a de minimis sanction in a case such as this would plainly undermine the purpose of discovery. Far from insuring that a wrongdoer not profit from his wrong, minimal terms would simply encourage litigants to embrace tactics of evasion and delay. This we cannot do.
Gammon, 38 Wn. App. at 282. See also Taylor v. Cessna Aircraft Co., 39 Wn. App. 828, 836, 696 P.2d 28, review denied, 103 Wn.2d 1040 (1985).
In Washington State Physicians Ins. Exchange & Ass’n v. Fisons Corp., 122 Wn.2d 299, 858 P.2d 1054 (1993), we reversed a trial court determination not to impose sanctions for discovery abuse. There, a medical malpractice case had been filed against a doctor and a negligence action against a drug company for injuries to a plaintiff. After the doctor settled the claim of the plaintiff, the attorney for the plaintiff provided to the doctor’s lawyer a copy of a letter from an anonymous source indicating the drug company was aware of serious complications involving its drug. The drug company had not disclosed information concerning such complications to the doctor’s counsel in the course of discovery. We held sanctions were appropriate because "a spirit of cooperation and forthrightness during the discovery process is necessary for the proper functioning of modern trials.” Id. at 342. We further noted the conduct of counsel in discovery is measured "against the spirit and purpose of the rules, not against the standard of practice of the local bar.” Id. at 345. We remanded the case to the trial court for a determination of appropriate sanctions to be imposed. In Fisons, we rejected a hypertechnical reading of the rules, noting the *152drug company clearly had a responsibility to produce the "smoking gun” evidence in its possession regarding its drug. See also Staggs v. Subaru of Am., Inc. (W.D. Wash. No. C93-5678); Alex Fryer, Dismaying Discovery: Sanctioned Again, Bogle Says It’s Taking Steps to Keep the Courts Satisfied, Puget Sound Business Journal, Nov. 17-23, 1995, at 1.
The policy of these cases is plain. Washington courts will not tolerate efforts by counsel to hide behind the letter of discovery rules while ignoring their spirit. The purpose of civil discovery is to disclose to the opposing party all information that is relevant, potentially relevant or reasonably calculated to lead to discovery of admissible evidence in the trial at hand. CR 26(b)(1). Counsel and parties may not unilaterally decide to withhold properly requested information on the ground it is not relevant or admissible. Nor should the courts sit back and wait for an incipient Fisons case to ripen. Where there is an indication a serious potential exists for abuse of civil discovery, the courts are obliged to act. But attorneys in the position of Eymann and Jones must still take their concern about alleged incipient Fisons situations to the courts, rather than taking matters into their own hands.
We do not condone ex parte contact between counsel and expert witnesses of other parties or potential parties to litigation. Eymann and Jones should have brought their concern about Buske’s evidence to the trial court, rather than engaging in self-help. But neither should the courts stand by and permit what might be plainly relevant, and potentially extremely significant, evidence to be lost or hidden through intricate investigative plans, and a hyper-technical reading of discovery rules. The purpose of the discovery rules is to ensure trials are fair and the truth is not lost. We must continually affirm these principles, until litigation counsel get the unmistakable message we will apply these principles in discovery and we will sanction lawyers who do not take us at our word.
The end result of this extended controversy over Bus*153ke’s information has been an inexcusable delay in reaching the merits of the case. The fires which claimed the homes of many of the plaintiffs occurred nearly five years ago. On remand, the trial court should evaluate the conduct of all parties and their counsel, but the trial court should proceed to the merits of this case as expeditiously as possible.
The trial court did not make findings of fact on the conduct or intentions of the parties, and, in particular, Buske’s allegations about Paine Hamblen. For purposes of this opinion only, I assume Buske’s allegations about Paine Hamblen are true.
This is not a traditional case of counsel contacting the opposing party’s experts. Paine Hamblen did not make clear to Buske the party for whom Buske was a consulting witness. The dual or multiple representation of the utilities and meetings of the investigative teams also may have created circumstances in which Buske’s opinions and findings would be revealed to parties other than the one employing Buske. On this inadequate record and without the terms of Paine Hamblen’s joint representation agreement before us, it is not possible to conclude whether confidentiality was preserved or lost. However, it was clear enough to Eymann and Jones the utilities would claim Buske was a defense expert and his information was privileged.
The trial court did not make written findings of fact and conclusions of law on its rationale for the imposition of sanctions against Eymann and Jones.