It alone is placed in issue here. See Dean v. Superior Court, 84 Ariz. 104, 324 P.2d 764, 73 A.L.R.2d 1 (1958); Watts v. Superior Court, 87 Ariz. 1, 347 P.2d 565 (1959); State Farm Ins. Co. v. Roberts, 97 Ariz. 169, 398 P.2d 671 (1965); Zimmerman v. Superior Court, 98 Ariz. 85, 402 P.2d 212 (1965). The major ground urged by petitioner is that the respondents Lanning have not shown, as petitioner claims they must, good cause for production of the records by the State Compensation Fund. Petitioner's basic contention is that when a party seeks production of documents or other things from a non-party witness, it is incumbent upon the party to show good cause for production if the existence of good cause is called into question by the opposing party, as by a motion to quash.
84 Ariz. at 113, 324 P.2d at 770. In the very recent case of State Farm Insurance Company v. Roberts, 97 Ariz. 169, 398 P.2d 671 (1965) plaintiff sought to obtain a copy of the statement given by the defendant to his insurer. We held the statement was discoverable although it was clear that the statement was to be used for impeachment.
Even though Rule 45 makes no reference to good cause, the majority of courts, including the Arizona Supreme Court, have read the good cause requirement of Rule 34 into Rule 45. State Farm Insurance Company v. Roberts, 97 Ariz. 169, 398 P.2d 671 (1965). However,
Simper, 9 F.R.D. at 600. Accord,Bingle v. Liggett Drug Co., 11 F.R.D. 593 (D.Mass.1951) (" as a practical matter the insurer is the real litigant here" ); Wilson v. David, 21 F.R.D. 217 (W.D.Mich.1957) (following Simper ); State Farm Ins. Co. v. Roberts, 97 Ariz. 169, 398 P.2d 671 (1965) (" As a practical matter State Farm is the real litigant here" ).
We have said that what constitutes "good cause" in matters of discovery depends upon the "particular circumstances of each case" and "considerations of practical convenience;" therefore, the trial court must necessarily be vested with some measure of discretion. State Farm Ins. Co. v. Roberts, 97 Ariz. 169, 174, 398 P.2d 671, 674 (1965); see also Watts v. Superior Ct., 87 Ariz. 1, 3-4, 347 P.2d 565, 566-67 (1959). In our judgment, that discretion was abused here.
However, it has previously been held that statements taken from an insured by insurance investigators in situations similar to the present are discoverable. Longs Drug Store v. Howe, supra; St. Farm Ins. Co. v. Roberts, 97 Ariz. 169, 398 P.2d 671 (1965); State v. Superior Court, 120 Ariz. 501, 586 P.2d 1313 (App. 1978). The following circumstances are well recognized bases for disclosure of witnesses' statements under the "substantial need" and "undue hardship" test of Rule 26(b)(3): (1) hostility of a witness; (2) inability of a witness to recall details about the event; (3) substantial contemporaneity of the statement with the occurrence at issue; (4) the statements are sought to impeach or determine the credibility of a witness, and (5) the statements contain admissions.
We have previously held that statements taken from an insured by insurance investigators working on a case in anticipation of litigation are not communications to counsel and are not within the attorney-client privilege. Butler v. Doyle, 112 Ariz. 522, 525, 544 P.2d 204, 207 (1975); see also State Farm Insurance Company v. Roberts, 97 Ariz. 169, 175, 398 P.2d 671, 674 (1965). Longs attempts to distinguish Butler on the grounds that the record in this case does not indicate that Farmers was investigating the claim because of any interest of its own as insurer, but was doing so only at the request of Barker.
For all practical purposes it is performing the exact functions and playing the precise role of an actual party to the litigation. That being true, it should be subject to the usual and reasonable rules of procedure, and especially with respect to discovery"); State Farm Ins. Co. v. Roberts, 97 Ariz. 169, 398 P.2d 671, 675-76 (1965); Moore's Federal Practice, supra n. 4, ΒΆ 34.17. Request for Production No. 2 asked for "each piece of advertisement which has been used to advertise the Hawes and/or its predecessor single action revolvers in the United States or abroad."
This special action followed. In State Farm Insurance Co. v. Roberts, 97 Ariz. 169, 398 P.2d 671 (1965) a statement given to an adjuster for the insurance carrier was held not to be the work product of the adverse counsel. Since the decision in that case there has been a revision in the civil discovery rules.
Statements taken under these circumstances have been held to constitute "good cause" for their production. Goosman v. A. Duie Pyle, Inc., 320 F.2d 45; SouthernRailway v. Campbell, 309 F.2d 569; Brown v. New York, New Haven Hartford Railroad Company, 17 F.R.D. 324; State Farm Insurance Company v. Roberts, 97 Ariz. 169, 398 P.2d 671; Miller v. Harpster, Alaska, 392 P.2d 21. Under the circumstances the entire record may be considered in determining whether there was "good cause" for production of the statement, the insufficiency of the moving papers being excused by defendant's failure to answer that part of Interrogatory No. 49 which sought to ascertain when the statement was made and by the understanding between counsel that the date of the statement would be agreed upon at the hearing. See Goosman v. A. Duie Pyle, Inc., supra, p. 53.