Opinion
44840.
ARGUED OCTOBER 8, 1969.
DECIDED JANUARY 8, 1970.
Action for damages. Lowndes City Court. Before Judge Connell.
J. Lundie Smith, Coleman, Blackburn, Kitchens Bright, J. Converse Bright, for appellant.
Alexander, Vann Lilly, Frank T. Holt, William U. Norwood, for appellee.
The trial judge did not err in refusing to require the defendant to produce certain items under the provisions of Section 34 of the Civil Practice Act.
ARGUED OCTOBER 8, 1969 — DECIDED JANUARY 8, 1970.
This case arose out of an action by the plaintiff seeking the recovery of damages to his tractor-trailer and cargo sustained in a collision at a grade crossing with the defendant's locomotive.
Plaintiff filed interrogatories seeking, inter alia, information as to sketches, photographs, and statements in the possession of the defendant. Defendant filed answers to the interrogatories admitting it was in possession of certain photographs and sketches and also of a number of statements from certain persons named in its answers to interrogatories.
Plaintiff then filed a motion to produce, pursuant to Section 34 of the Georgia Civil Practice Act ( Code Ann. § 81A-134; Ga. L. 1966, pp. 609, 646; 1967, pp. 226, 233) to require the defendant to furnish plaintiff copies of, or to produce and permit plaintiff to inspect and copy, certain photographs, a plat sketch, a plan of defendant's tracks, a report of defendant's claim agent on said collision, and all of the statements in the possession of the defendant.
The motion came on for hearing before the trial judge who pursuant thereto issued an order stating that although the plaintiff had shown good cause for the production of documents denominated (a), (b) and (bb) that "plaintiff failed to show that the documents denominated (c) through (aa) were not protected by the attorneys' work product or that there was good cause for their production under Georgia Code Ann. § 38-2109 (a) or that a manifest injustice or intolerable hardship would result if plaintiff was not permitted discovery of such documents." The court ordered the defendant to produce the documents, enumerated by plaintiff as (a), (b) and (bb), but ordered that the defendant was not required to produce any of the other documents requested by the plaintiff.
Upon the trial judge's certification that his order on the motion to produce was of such importance to the case that immediate review should be had, the plaintiff appeals to this court.
Counsel for the plaintiff contends that the order appealed from erroneously placed the burden upon the plaintiff of showing that the documents sought were not protected by the "work product exception." It is further urged that the plaintiff's affidavit which recites "that the statements sought were taken shortly after the collision" and "that information of such quality is not now available to the plaintiff" was sufficient to require as a matter of law that the information sought be produced.
We agree with counsel that there is no burden upon the movant to show that items sought under Section 34 of the Civil Practice Act are not privileged or not within the attorneys' work product. Wilson v. David, 21 F.R.D. 217, 219. See in this connection Reynolds v. Reynolds, 217 Ga. 234, 240 ( 123 S.E.2d 115). In fact, although there is some conflict in the Federal cases regarding this matter, the only requirement as set forth by the statute is that the movant show "good cause" for the production of the documents sought. See Sorrells v. Cole, 111 Ga. App. 136, 141 ( 141 S.E.2d 193); Atlantic C. L. R. Co. v. Daugherty, 111 Ga. App. 144, 154 ( 141 S.E.2d 112); United Airlines, Inc. v. United States, 26 F.R.D. 213, 216 and 217.
However, this does not mean that the plaintiff was entitled as a matter of law to the information sought. The trial judge has certified to this court that "during the hearing on said motion certain facts were stated by defendant's counsel which were considered by me in passing upon the motion." Thus, without determining whether the plaintiff's affidavit per se would entitle him to prevail, in this court the burden was upon the appellant to demonstrate that there were no grounds on which the trial judge might have found a lack of good cause. As was held in Atlantic C. L. R. Co. v. Gause, 116 Ga. App. 216, 225 ( 156 S.E.2d 476), we must presume that there were facts before the judge of a nature ample to support his finding and judgment. On the record before us, we cannot conclude that the trial judge erred in refusing to allow discovery as to the items which the plaintiff enumerates as error.
Judgment affirmed. Hall, P. J., and Pannell, J., concur.