(dissenting) — I disagree with the majority opinion for two independent reasons. First, the majority erroneously sanctions the assertion of the work product privilege by an insurer, United Services Automobile Associates (USAA), after it voluntarily released the documents at issue to its adversary-insured, Bradley Harris, who then provided the documents to the defendant-petitioner, Doris Drake. Second, the majority incorrectly concludes that it was not error for the trial court to deny Drake’s motion for a continuance when the trial court excluded Drake’s only expert witness on the morning of trial. I would hold that USAA waived any work product privilege it may have had and that the trial court abused its discretion in not granting a continuance. I, therefore, dissent.
I. WORK PRODUCT PRIVILEGE
The work product doctrine protects only documents that are prepared in anticipation of litigation. Heidebrink v. Moriwaki, 104 Wn.2d 392, 396, 706 P.2d 212 (1985). However, the privilege continues even after the litigation for *495which it was produced has ceased. Pappas v. Holloway, 114 Wn.2d 198, 210, 787 P.2d 30 (1990). The purpose behind the creation of this privilege was “to preclude unwarranted excursions into the privacy of a man’s work.” Hickman v. Taylor, 329 U.S. 495, 497, 67 S. Ct. 385, 91 L. Ed. 451 (1947) (emphasis added). Thus, the privilege is limited to information that remains undisclosed. In re Firestorm 1991, 129 Wn.2d 130, 141-42, 916 P.2d 411 (1996).
It is widely accepted that if a party voluntarily discloses documents to an opposing party, then any possible work product protection for those documents is waived. Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine 613 (4th ed. 2001) (“Although not all disclosures of work-product protected materials necessarily result in a waiver as to other parties, disclosure to an adversary does result in a waiver. Because the protection is designed to protect an attorney’s trial preparation and mental processes from discovery at the behest of an adversary, clearly voluntary disclosure to an adversary would almost invariably be seen as a total waiver.”); see also Limstrom v. Ladenburg, 110 Wn. App. 133, 145, 39 P.3d 351 (2002) (concluding that “[i]f a party discloses documents to other persons with the intention that an adversary can see the documents, waiver generally results”).
More problematic is the situation where documents are inadvertently disclosed. Indeed, there are no Washington cases discussing the inadvertent disclosure of work product protected materials. In the absence of state precedent, we look to the federal courts’ interpretation of similar rules of civil procedure. Am. Disc. Corp. v. Saratoga W., Inc., 81 Wn.2d 34, 37, 499 P.2d 869 (1972).
The majority of the federal courts apply a flexible test to determine whether the work product privilege is waived when documents are inadvertently disclosed. United States v. Gangi, 1 F. Supp. 2d 256, 264 (S.D.N.Y. 1998).
Under this flexible test, courts are called on to balance four relevant factors: (1) the reasonableness of the precautions *496taken by the producing party to prevent inadvertent disclosure of privileged documents; (2) the volume of discovery versus the extent of the specific disclosure at issue; (3) the length of time taken by the producing party to rectify the disclosure; and (4) the overarching issue of fairness.
United States v. Rigas, 281 F. Supp. 2d 733, 738 (S.D.N.Y. 2003). The Third Circuit Court of Appeals has noted that “in the case of inadvertent or involuntary disclosures, the party asserting the work product doctrine must pursue all reasonable means to restore the confidentiality of the materials and to prevent further disclosures within a reasonable period to continue to receive the protection of the privilege.” In re Grand Jury (Impounded), 138 F.3d 978, 981 (3d Cir. 1998).
The majority here concludes that the reports are work product because “Harris’s medical examination was conducted by USAA for the purpose of defending against a claim for further PIP [personal injury protection] benefits.” Majority at 488. Therefore, it holds that the litigation for which the work product was created was that relating to the PIP insurance benefits in which the opposing parties were USAA and Harris.2 I do not take issue with this conclusion. Where the majority errs is in ignoring the fact that USAA then voluntarily provided its adversary, Harris, a copy of the medical examination. Resp’t’s Answer to Pet. for Review at 8. Drake was subsequently furnished, argu*497ably inadvertently, a copy of the examination from Harris’ treating physician. Id.
In my view, the furnishing of the examination to Drake by USAA was inadvertent and, therefore, we should consider the factors set forth in Rigas to determine if USAA waived any possible work product privilege. Applying these factors, it is apparent that USAA took no precautions to assure that Drake or others would not receive the examination; indeed, USAA turned it over to its adversary, Harris. Moreover, USAA failed to take any action to rectify the disclosure until over two years after it occurred, and even then the court had to inquire as to USAA’s position. Majority at 485. Lastly, fairness weighs heavily toward waiver, considering Drake gave notice of her intent to use the examinations, and USAA failed to act until the day of trial. Based on these factors, I conclude that USAA waived any work product privilege as to Drake.
II. CONTINUANCE
The trial court has the discretion to deny a motion for a continuance, and the exercise of this discretion will be reversed only if abused. In re Det. of G.V., 124 Wn.2d 288, 295, 877 P.2d 680 (1994).
In exercising its discretion, the court may properly consider the necessity of reasonably prompt disposition of the litigation; the needs of the moving party; the possible prejudice to the adverse party; the prior history of the litigation, including prior continuances granted the moving party; any conditions imposed in the continuances previously granted; and any other matters that have a material bearing upon the exercise of the discretion vested in the court.
Balandzich v. Demeroto, 10 Wn. App. 718, 720, 519 P.2d 994 (1974).
Here, the trial court refused to grant the continuance after Harris’ attorney explained that trial had been continued twice before and that the plaintiff had traveled from Georgia to Tacoma to attend the trial. The Court of Appeals *498affirmed the trial court’s decision in that regard, emphasizing that the trial had been “continued” eight times. Harris v. Drake, 116 Wn. App. 261, 288, 65 P.3d 350 (2003), review granted, 150 Wn.2d 1025, 82 P.3d 242 (2004). The majority of this court affirms the trial court and Court of Appeals based on its reasoning that “[a]t some point a trial must proceed.” Majority at 493.
Applying the factors listed in Balandzich, the first relevant consideration is the prior continuances granted to the moving party. Here, there was only one prior continuance granted at the insistence of Drake’s attorney. The record shows that on November 27, 2000, Drake’s attorney moved to continue the trial that had been scheduled for March 20, 2001, because the attorney was previously scheduled to begin another trial in Pierce County on that date. The attorney made this motion approximately one month after the March 20, 2001, trial date had been set and approximately four months before the trial date. Because the attorney made the motion promptly and because he had no choice but to make this motion in light of the conflicting settings, the fact that he requested this continuance should not support the trial court’s refusal to grant the continuance at issue.
The other continuance noted by the trial court was stipulated to by both parties and, therefore, does not support the trial court’s decision to deny the motion for continuance that Drake made on the day of trial. Lastly, the other six changes in the trial date that the Court of Appeals found significant should not be considered because these appear to have been made to accommodate the trial court’s calendars and not those of the parties to the case. Indeed, the local rules of the Superior Court for Pierce County (PCLR) authorize the presiding judge to adjust the trial date to “accommodate the Court’s civil and criminal calendars and to attempt to insure trial on the day scheduled.” PCLR 40(g)(2)(A).
The only other factor that was brought to the trial court’s attention was that the plaintiff had traveled from Georgia *499for the trial on April 10, 2001. Although this fact might weigh in favor of denial of the continuance motion, it is greatly outweighed by the plaintiff’s delayed objection to Drake’s witness. We have observed that the “ ‘trial by ambush’ style of advocacy [ ] has little place in our present-day adversarial system.” Lybbert v. Grant County, 141 Wn.2d 29, 40, 1 P.3d 1124 (2000). Here, Harris waited until the last moment, 4:00 p.m. on the day before trial, to object to the defense’s expert and seek his exclusion.3 This eleventh-hour action strikes me as entirely unreasonable in light of the fact that Harris had known for over two years that Drake intended to call the witness, Dr. Bede.
In sum, I dissent because any work product privilege that may have been attached to the medical examination was waived and because it was unreasonable under the circumstances for the trial court to deny a continuance to Drake when Harris waited until the last moment to assert his objection to Drake’s expert witness.
Although the majority concludes that the medical examination was conducted in anticipation of a dispute between USAA and Harris, in the same paragraph it states that it is reasonable for the PIP insured to expect that the insurer will keep the medical exam confidential. These two determinations are inconsistent. If the examination was prepared in anticipation of a possible suit against Harris, why should Harris have a reasonable expectation that the report will be kept confidential? Instead, Harris should expect that the exam will be used against him if there is a future legal dispute concerning the PIP benefits. The majority’s confusion stems from a misunderstanding of Heidebrink v. Moriwaki, 104 Wn.2d 392, 706 P.2d 212 (1985). There, the defendant/insured gave a statement to his insurance investigator immediately after an automobile accident, and we determined that this statement was work product protected because the insurance investigator was acting for the insured’s benefit at the time of the statement. Heidebrink, 104 Wn.2d at 394, 400. Here, however, the insurance company was in an adversarial position to its insured at the time of the exam. Specifically, USAA anticipated that it might be in a future suit with Harris.
The Court of Appeals also faulted Drake for relying on Johnson v. McCay, 77 Wn. App. 603, 893 P.2d 641 (1995). Harris, 116 Wn. App. at 287. This argument is also unpersuasive because Drake never had reason to rely on Johnson considering Drake listed Dr. Bede as her expert and Harris did not object for over two years.