¶31 (dissenting) — While engaged in litigation with the Washington State Department of Transportation (WSDOT), respondent Mendoza de Sugiyama made a discovery request for over 174,000 e-mails in WSDOT’s e-mail system. The superior court ruled that her request was overbroad and unduly burdensome, denied her motion to compel, and granted WSDOT a protective order under CR 26(c). The respondent immediately requested the same records from WSDOT under the Public Records Act (PRA), chapter 42.56 RCW. Neither the terms nor the purposes of the PRA allow its use as such a blunt and destructive circumvention of the processes of superior court. Therefore, I dissent from the majority’s approval of respondent’s stratagem.
¶32 This appeal is controlled by RCW 42.56.290, which states that
[r]ecords that are relevant to a controversy to which an agency is a party but which records would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts are exempt from disclosure under this chapter.
¶33 A discovery protective order is authorized by and implements CR 26(c), which itself is a rule of pretrial discovery. The effect of a protective order is to prohibit or limit certain types of discovery, thus making the matters requested unavailable (or conditionally available) under the rules of pretrial discovery. See CR 26(c)(1)-(8). A protective order may be issued to protect a party from undue burden. CR 26(c). Therefore, the records subject to the pro*607tective order issued by superior court in this matter were not available to the respondent under the rules of pretrial discovery. With that, they were exempted from disclosure by the plain language of RCW 42.56.290.
¶34 The majority contends that this exemption covers only certain categories of records, such as work product and privileged communications. This approach, however, quickly mires itself in self-contradiction. Under it, a record outside of these categories that is subject to a protective order under CR 26(c) would necessarily be unavailable under the rules of pretrial discovery for purposes of the protective order, but available under the rules of pretrial discovery for purposes of RCW 42.56.290. Unless Aristotle’s rule of the excluded middle10 has been rescinded, that is not logically possible.
¶35 More importantly, the cases cited do not support the majority’s position. The issue faced by O’Connor v. Department of Social & Health Services, 143 Wn.2d 895, 25 P.3d 426 (2001), was whether a party in litigation with a public agency may use the PRA to obtain records from the agency or whether it must proceed under the discovery provisions of the Civil Rules. O’Connor, 143 Wn.2d at 898. In deciding that a party is not prohibited from using the PRA, our Supreme Court was not confronted with and did not decide the issue presented here: whether the PRA may be used by a litigant to frustrate a discovery order binding that litigant. Similarly, the issue in Soter v. Cowles Publishing Co., 162 Wn.2d 716, 731-32, 174 P.3d 60 (2007), was whether requested documents were exempt as work product or privileged information under RCW 42.56.290. The court’s analysis, consequently, focused on CR 26(b) and the meaning of those concepts. Its conclusion that the documents were work product or privileged and therefore exempt under RCW 42.56.290 in no way implies that the exemption is restricted to those categories.
*608¶36 Allowing this bold and unmistakable circumvention of the rules of superior court also runs counter to this court’s reasoning in Evergreen Freedom Foundation v. Locke, 127 Wn. App. 243, 110 P.3d 858 (2005). There, the trial court had ordered that
“[a]ll current and future public disclosure requests and related communications regarding the 7E7 Project and Master Agreement from [Evergreen Freedom Foundation] must be transmitted through [Evergreen Freedom Foundation’s] counsel to Defendant’s counsel for review for consistency, to provide an opportunity for clarification, to reduce the multiplicity and duplicative requests, and to alleviate the substantial and irreparable damage to vital governmental functions and impact on limited staff resources for the responding agency. . . . For new public records requests, the Defendants’ time period to respond under RCW 42.17 begins after this review process is completed and on the date that the Defendant agency receives the request.”
Evergreen Freedom Found., 127 Wn. App. at 251 (most alterations in original). We upheld this order, as long as it was limited to the litigation, holding that
this order was clearly a case management tool. And a court reviewing a [public disclosure act] ruling will not “interfere with trial courts’ litigation management decisions.” Brouillet v. Cowles Publ’g Co., 114 Wn.2d 788, 801, 791 P.2d 526 (1990) (emphasis added). The record reveals that multiple people from [Evergreen Freedom Foundation] were making requests to the Department for documents and that responding to [Evergreen Freedom Foundation’s] requests consumed a significant portion of staff time and resources. Thus, the court acted within its discretion by imposing a mechanism to better manage [Evergreen Freedom Foundation’s] disclosure requests during the litigation.
Evergreen Freedom Found., 127 Wn. App. at 252.
¶37 The specific holding in Evergreen Freedom Foundation is not of great precedential gravity here, since the court orders at issue were different. The opinion’s rationale, *609however, is persuasive in resolving this appeal, since the order here at issue is also an exercise of the trial court’s litigation management authority, the same authority to which the Evergreen court deferred. Under Evergreen, the respondent should not be allowed to use the PRA to thwart the court’s authority to manage litigation before it, especially when that authority is carried out in close conformance with the Civil Rules.
¶38 The plain language of RCW 42.56.290 exempts material that is unavailable under the rules of pretrial discovery, one of which is CR 26(c) authorizing protective orders. Simply following this plain language would baffle the respondent’s attempt to frustrate valid discovery orders of the superior court. For these reasons, I would reverse.
See Alain Badiou, The Three Negations, 29 Cardozo L. Rev. 1877, 1878-79 (2008).