Opinion
No. 31617
Decided April 20, 1949.
Depositions — Action involving public transportation vehicle in accident — Production of company general records compelled through subpoena duces tecum — Carbarn record, trip sheets and crew-personnel record — But accident reports and records in possession of company's legal counsel, privileged communications — Record kept for general purposes or nonprivileged information to be made available — Privilege not attained by delivering record to counsel or legal department, when.
1. A record as to the barn in which a public transportation vehicle, involved in an accident, was kept on the day of such accident, the trip sheets showing the operation of the vehicle on such day, and a record of the names of the operators of the vehicle on that day are competent as evidence in an action predicated on such accident claimed to have been caused by the negligence of the operator of such vehicle, and their production may be compelled through a subpoena issued by a notary public to a person, having control of the general records of the transportation company owning the vehicle, for the taking of his deposition in such action. (Paragraph two of the syllabus in In re Hyde, 149 Ohio St. 407, approved and followed.)
2. Reports and records concerning an accident in which a public transportation vehicle is involved, which reports and records, according to the custom of the company owning such vehicle, are turned over to and remain in the possession of the company's legal department, are privileged communications and their production cannot be enforced in the taking of depositions in an action predicated on such accident.
3. A record kept for general purposes and containing information which is relevant, competent and material cannot be made privileged simply by turning it over to the attorney or legal department of the person or company whose record it is, and such record must be produced or the relevant and nonprivileged information therein made available to the person legally entitled thereto through subpoena issued by a notary public to the person having control of such record.
IN HABEAS CORPUS.
This case is a proceeding in habeas corpus originating in this court.
William C. Keough, hereinafter designated petitioner, filed a petition for a writ of habeas corpus seeking to be released from the unlawful restraint of the sheriff of Cuyahoga county resulting from a commitment issued by Jack E. Donley, a notary public, for refusal to produce certain records at the taking of a deposition. A writ of habeas corpus was granted by this court for the production of the body of the petitioner.
There is pending in the Common Pleas Court of Cuyahoga county the case of Gebauer v. City of Cleveland, in which Alexander Gebauer is plaintiff and which concerns an accident in which a streetcar of the transit system owned and operated by the city of Cleveland was involved.
A subpoena duces tecum was issued to the petitioner, who was a member of the transit board of Cleveland, ordering him as such member to appear for a deposition and to bring with him certain records and documents. The subpoena, so far as the production of the records and documents was required, read as follows:
"Bring with you the following records:
"1. The records showing what carbarn streetcar No. 329 was kept in on November 21, 1946.
"2. The original trip sheets showing the operation of streetcar No. 329 on November 21, 1946; and particularly all trip sheets with reference to said streetcar between noon of said day and 2:30 o'clock of said date.
"3. All records showing the names of the crew engaged in operating said car No. 329 on November 21, 1946; and particularly those operating it between the hour of noon and 2:30 o'clock in the afternoon.
"4. The original police investigation report and all copies of statements attached thereto which was secured by Patrolman Clarence Rickey and Robert Skala, and which have been placed in your possession and custody and control by the members of the Cleveland police department who made said original police report, socalled."
Pursuant to the subpoena, the petitioner appeared at the deposition but refused to produce the records called for in the first three items of the subpoena duces tecum, although the records referred to in item four were produced and as to them there is no question now before us.
Petitioner refused to produce the records or to make available the information contained in them, and was ordered so to do by the notary public, and upon the petitioner's continued refusal an arrest order was issued.
It developed that the records called for in items one, two and three of the subpoena were in the hands of the general counsel for the Cleveland transit board; that they had been turned over to him at the time the action by Gebauer against the city of Cleveland was begun; and that the petitioner refused to direct his counsel, in whose hands the records were, to make them available, saying, "no; I shall not do that, on the ground that those records are incompetent, irrelevant, immaterial and not pertinent to the issues, and not subject to production by a subpoena duces tecum, and that they are privileged."
Counsel for petitioner and the Cleveland transit system said in reference to the records, "they will be used by the general counsel of the transit system in the defense of this [Gebauer] lawsuit."
It appeared in the testimony that privilege was claimed for the records because they had been transferred to counsel in the regular course of business, according to a custom of the Cleveland transit system for many years.
Mr. Robert J. Shoup and Mr. Richard C. Green, for petitioner.
Messrs. Harrison, Thomas, Spangenberg Hull, for Alexander Gebauer.
Was Gebauer entitled to the records demanded or to have the information therein made available to him?
Again the question is before us whether a person subpoenaed to give testimony in a deposition before a notary public may refuse to answer questions on the ground that the information sought is incompetent, immaterial, irrelevant or privileged.
In the case of In re Hyde, 149 Ohio St. 407, 79 N.E.2d 224, we reviewed the decisions of this court with reference to questions similar to those involved here and showed how, like Banquo's ghost, they had been periodically rising during the past 55 years. We stated in the Hyde case as follows:
"It will be noted that in all the cases hereinbefore mentioned, while they diametrically differ in their conclusions as to the right of a witness in a deposition to refuse to answer questions because of their irrelevancy, incompetency and immateriality, there is a uniformity of opinion that the witness may refuse to answer upon the ground that the information sought to be elicited is privileged and may have that question tested in habeas corpus proceedings."
This court unanimously agreed upon the syllabus in the Hyde case, which reads as follows:
"1. Reports and records concerning an accident in which a public transportation vehicle is involved, which reports and records, according to the custom of the company owning such vehicle, are turned over to and remain in the possession of the company's legal department, are privileged communications and their production cannot be enforced in the taking of depositions in an action predicated on such accident. (Paragraph three of the syllabus of Ex Parte Schoepf, 74 Ohio St. 1, approved and followed.)
"2. The names and addresses of the operators and the times of operation of public transportation vehicles of a company, as well as the times of their operation in reference to an accident involving one of such vehicles, which information, for general purposes, is a matter of record with the company, are not privileged and are relevant and competent as evidence in an action predicated on such accident claimed to have been caused by the negligence of the operator of such a vehicle. Such information may be elicited through a subpoena issued by a notary public, to one having control of the records of the transportation company, for the taking of his deposition in such action."
It was claimed by Gebauer that streetcar No. 329 was the one involved in the accident on November 21, 1946, in which he was involved.
Under the holding and logic of the Hyde case, Gebauer was entitled to the information as to the carbarn in which such car was kept on the date of the accident, as well as the information from the trip sheets showing the operation of such car on such date and the names of the operators and their times of operation of the car, all as required by the subpoena. Gebauer was entitled to elicit that information only from the records kept for general purposes by the city and not from any records which were prepared for use in connection with the defense of Gebauer's action. Gebauer was not entitled to the names or reports of any witnesses to his accident, which the city had secured, or to any records of information of any kind which were made or came into existence as the result of or concerning the accident. Such records were privileged in the hands of the city.
The last pronouncement of this court with reference to the right of a witness, when his deposition is being taken, to refuse to answer a question upon the ground that it is irrelevant, incompetent or immaterial was in the case of In re Martin, Jr., 141 Ohio St. 87, 47 N.E.2d 388. Paragraph four of the syllabus of that case reads:
"A witness who is not a party has no legal right, upon the taking of his deposition, to refuse to answer any question, upon the advice of his attorney, merely because the attorney believes that the testimony sought is irrelevant, incompetent or immaterial. (Paragraph four of the syllabus in Ex Parte Schoepf, 74 Ohio St. 1, and In re Martin, Jr., 139 Ohio St. 609, overruled.)"
The petitioner in the present case attempts to make a distinction, as to the holding in the Martin case, between a witness who is orally asked a question and the petitioner who was called as a party and ordered to produce a document. He refers us to Section 11551, General Code, providing that the court in which an action is pending may order parties to produce books and writings in their possession which contain evidence pertinent to the issue, in cases and under circumstances where they might theretofore have been compelled to produce them by the ordinary rules of chancery. Petitioner then strenuously argues to the effect that the information required by the subpoena in the present case is not pertinent to the issues in the Gebauer case; that the petitioner whose deposition was being taken as a party in the Gebauer case was in a different situation than a witness being asked a question in a deposition; and that petitioner had a right to refuse to produce or make available the records described in the subpoena.
Petitioner maintains that there is a real and valid distinction between a subpoena ad testificandum and a subpoena duces tecum, but we need not pass upon the question involved in his thesis for the reason that we hold, on authority of the Hyde case, that the information required in the subpoena involved here is pertinent in the Gebauer case.
The identity of the operators of a transportation vehicle involved in an accident is relevant in an action concerning such accident by one who claims to have been hurt therein. The kind of person an operator is, with reference to his competency or lack thereof or training or lack thereof, bears directly upon the question of the due care of a transportation company with reference to the operators to whom it entrusts its vehicles.
We are not holding that an accident record of such an operator would shed any light upon his competency or incompetency, because that would require a collateral investigation as to the cause of other accidents not concerned with the one on trial.
Assuredly it would be pertinent to a plaintiff's case, in the trial of a negligence action as the result of an accident in which a public transportation vehicle was concerned, to have information as to what vehicle was involved, as to its schedules on the day of the accident and as to its route. All these matters have a direct bearing upon the question of the operating speed.
Since petitioner's whole argument with reference to Section 11551, General Code, is bottomed upon a question of relevancy, Gebauer was entitled under that section to the information he seeks in the subpoena with which the present case is concerned.
As we have said, Gebauer is not entitled to any records, statements or information which the city of Cleveland has in its possession and which came into being as a result of the accident in which Gebauer was concerned. But he is entitled to have made available to him the information he seeks from the general records of the city which were made and kept without regard to any accident.
It is claimed that, because the records whose production is sought by the subpoena had been placed in the hands of counsel for the defense in the action by Gebauer and that this was done in accordance with a custom of some years standing of the transit system, the records are privileged under the rule enunciated in paragraph one of the syllabus of the Hyde case, supra.
It will be noted, however, that that paragraph of the syllabus refers to reports and records concerning an accident, which, according to custom, are turned over to and remain in the possession of the company's legal department. Such reports and records are those which come into existence because of the accident and would not prevent access to the information contained in the general records of the company which are kept without reference to an accident. The mere fact that such records had been turned over to a legal department would not preclude access to the information contained in them if it were otherwise not privileged. It would lead to an absurd result if a report or document, relevant, material, competent and nonprivileged in the possession of a client, which had come into existence in the general course of the client's business, could be made privileged merely by turning it over to the client's lawyer even though the client asserted that it was his custom to turn over such records and documents whenever claims were asserted against him.
In 8 Wigmore on Evidence (3 Ed.), 591, Section 2307, it is stated:
"Is the attorney compellable to produce in court, by subpoena or bill of discovery, the documents placed in his possession by the client?
"This is not a question of compelling the disclosure of the attorney's knowledge; he may know nothing of the contents of the document, nor is he asked to testify about them. Whether the package contains a diamond or a deed is immaterial. But must he produce it?
"The answer here depends upon the other privileges of the client irrespective of the present privilege. The attorney is but the agent of the client to hold the deed; if the client is compellable to give up possession, then the attorney is; if the client is not, then the attorney is not. It is merely a question of possession, and the attorney is in this respect like any other agent. There is, to be sure, the added consideration of policy, namely, that if the attorney were not compellable when the client was, then the client's obligation to produce could always be evaded in very simple fashion by placing the deed with the attorney; and such a quibble could not be tolerated by any practical system of law."
In the Hyde case, supra, we said that such information as Gebauer demands may be elicited through a subpoena issued by a notary public to one having control of the records of a transportation company, where that information for general purposes is a matter of record with the company. Such record does not become privileged merely by turning it over to the legal department, and its production or the information contained therein limited to what we have said must be made available by the one in whose custody it is when properly required in a deposition.
For the reasons given we hold that petitioner was not justified in refusing to have his counsel turn over to him the records requested in the subpoena for inspection, or, in the alternative, to make available to Gebauer the information requested in such subpoena.
Petitioner remanded to custody.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, TURNER and TAFT, JJ., concur.