¶36 (concurring in part and dissenting in part) — I agree with the majority holding that the city of Lakewood (City) is entitled to engage in discovery under the civil rules and that interrogatory 6 and request for production 1 were not reasonably calculated to lead to the discovery of admissible evidence. I write separately to express my view that David Koenig’s attorney fees request for the discovery violation should be analyzed separately from any prevailing party determination under the Public Records Act (PRA), ch. 42.56 RCW. Koenig did not initiate court action to enforce his PRA request. Rather, the City filed a declaratory judgment action to clarify the limits of its response to Koenig’s PRA request. The City then made discovery demands not reasonably calculated to lead to the discovery of admissible evidence in its declaratory judgment action.
Quinn-Brintnall, J.¶37 In my opinion, Koenig is entitled to attorney fees for successfully resisting the City’s improper discovery requests in an action it commenced. CR 26(c) and CR 37(a)(4) require the trial court to award attorney fees and costs incurred in seeking a protective order and responding to an unsuccessful motion to compel discovery. Specifically, CR 26(c) authorizes the court to make “any order which justice *898requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” and expressly triggers the application of CR 37(a)(4):
[T]he court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion [to compel discovery] or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
f 38 In light of our reversal of the trial court’s discovery decisions, I would remand to the trial court with directions that it address whether Koenig is entitled to attorney fees under CR 37 independent of whether he prevails in some future action under the PRA. See Eugster v. City of Spokane, 121 Wn. App. 799, 815-16, 91 P.3d 117 (2004), review denied, 153 Wn.2d 1012 (2005). Had the trial court properly denied the City’s motion to compel and granted Koenig’s motion for a protective order, Koenig would have been entitled to reasonable expenses incurred in obtaining the order. Neither CR 26 nor CR 37 requires Koenig to expressly request those expenses, and the record does not indicate that he waived his right to them.
¶39 Accordingly, I would remand the case to the trial court for a hearing on the amount of reasonable expenses, if any, including attorney fees, due to Koenig for having to defend against the City’s improper discovery request in the declaratory judgment action it filed.
Reconsideration denied April 20, 2011.