Summary
In Therrien v. Public Service Co., 99 N.H. 197, 108 A.2d 48 (1954), a suit was pending against an electric utility for personal injuries, and discovery was sought by petition against an employee of a non-party to ascertain what its file contained regarding the accident.
Summary of this case from Robbins v. Kalwall Corp.Opinion
No. 4323.
Argued September 7, 1954.
Decided September 30, 1954.
A bill of discovery for the production in advance of trial of a pending law action by a company of certain statements taken from witnesses may properly be granted notwithstanding the fact that such records are outside the jurisdiction and the fact that they may not be admissible in evidence.
On deposition the claim adjuster of such company was properly required to produce certain of the company's records material to a pending law action to which the company was not a party and to refresh his recollection from the file outside the jurisdiction to enable the plaintiff to intelligently seek additional discovery if circumstances warranted.
The fact that questions on deposition may call for hearsay does not entitle the witness to a refusal to answer but objection may be made thereto if the deposition is offered in evidence at the trial.
Only objections which can be obviated at the taking of the deposition are waived if not made at that time.
In such discovery proceedings, statements procured from witnesses by the company's claim investigator were not privileged or exempt from production as the work product of a lawyer.
It is not necessary to a bill of discovery that the one against whom discovery is sought be a party to a pending law action.
CASE, for negligence against the first named defendant to recover for personal injuries suffered by the plaintiff on October 10, 1950, when a motor vehicle in which she was traveling collided with a pole in Nashua belonging to the defendant; and BILL OF DISCOVERY, against the New England Telephone Telegraph Company seeking production of its file and records relating to the accident, including statements taken from witnesses. A suit against the Telephone Company to recover for the same injuries was removed to the Federal District Court (see Therrien v. N.E. Tel. Tel. Co., 102 F. Supp. 350) and upon stipulation of the parties was there "dismissed with prejudice" on May 1, 1952, by order which further provided: "no costs, no further action for the same cause against this defendant, reserving rights of plaintiff against all the world except this defendant." At the same time the plaintiff and her husband gave the Telephone Company covenants not to sue it.
Thereafter on August 18, 1952, the plaintiff took the deposition of Hatfield, a claim investigator for the Telephone Company, for use in the action pending against the Public Service Company of New Hampshire in the state court. In the course of the deposition the witness, upon advice of counsel who appeared for him, refused to answer a question with respect to what a certain witness had said to him. His counsel's objection to the question was upon the ground: "This testimony would be inadmissible in court." Other questions to which counsel objected because calling for hearsay were unanswered. The same witness had been directed by the summons to produce at the deposition all documents relating to the accident in his possession or available to him and all information and data concerning the pole in question, its installation, and location. The documents and information were not produced because the witness' file had been forwarded to the Boston office of the Telephone Company shortly before the summons was served.
After suspension of the deposition the plaintiff on August 25, 1952, filed a motion for orders that the witness answer all questions put to him concerning matters reasonably material to the plaintiff's case even if calling for hearsay; that he refresh his recollection by examining the file in Boston; and that he obtain from the Boston office such parts of the file as might be available to him and produce them at a continuance of the deposition. The Court (Sullivan, J.), after hearing, by order dated September 11, 1952, denied the first prayer but granted the remaining two, subject to exception by the witness' counsel.
As a result of questions raised at the hearing of August 26, the plaintiff on September 2, 1952, brought a bill of discovery against the Telephone Company, upon which an order was entered on June 23, 1953, after hearing, requiring the defendant to furnish the plaintiff with any information in its possession concerning the names of witnesses and statements given by them, and any information relating to the pole in question. To this order the Telephone Company duly excepted and on October 30, 1953, after its exception had been ordered reserved and transferred to this court, it moved that the order be modified to require merely that it furnish the names and addresses of witnesses interviewed, and the date, place, book and page where records pertaining to the pole are recorded. This motion was likewise denied subject to exception.
All questions raised by the exceptions of the witness Hatfield and of the defendant Telephone Company were reserved and transferred by Sullivan, J., who presided at all three hearings.
Devine Millimet (Mr. Millimet orally), for the plaintiff.
Burns, Calderwood Bryant and Robert E. Hinchey (Mr. Hinchey orally), for Hatfield, and the defendant New England Telephone Telegraph Company.
Sulloway, Jones, Hollis Godfrey for the defendant Public Service Company of New Hampshire, furnished no brief.
The principal complaint made with respect to the orders of the Superior Court appears to be directed toward those which require production by Hatfield of the company file, and by the company of statements taken from witnesses. It is asserted that names and addresses of witnesses have been furnished, that the plaintiff has taken one or more depositions, and that the information desired is available to the plaintiff direct from the witnesses themselves. This argument was considered by the Superior Court, and its order, supported by evidence that the plaintiff could not locate one or more of the witnesses and that others reside without the jurisdiction, must be deemed to have been properly entered in the exercise of the Court's discretion. Ingram v. Railroad, 89 N.H. 277, 279. The order did not extend to the requested production of the company's entire file and all information therein, nor was a blanket order issued requiring the witness to answer all material questions regardless of form or whether hearsay was called for. See Staargaard v. Company, 96 N.H. 17.
The circumstance that the documents are beyond the jurisdiction presents no obstacle (Davis v. Company, 79 N.H. 377), and the mere fact that they may not be admissible in evidence does not preclude the order. See Staargaard v. Company, supra, 18. "Such written statements and documents might, under certain circumstances, be admissible in evidence or give clues as to the existence or location of relevant facts. Or they might be useful for purposes of impeachment or corroboration. And production might be justified where the witnesses are no longer available or can be reached only with difficulty." Hickman v. Taylor, 329 U.S. 495, 511.
The excepting parties further urge that since they are not parties to the pending action, a bill for discovery will not lie. Whatever may have been the common law elsewhere in this regard (see VI Wig. Ev. (3rd ed.) ss. 1856d, 1857, 1859f) the rule does not prevail in this jurisdiction. The considerations which led the court in LaCoss v. Lebanon, 78 N.H. 413, 417, to hold that no statutory authority was needed to empower the court to require a party to discover apply with equal force and some greater reason to a nonparty. R. L., c. 392, s. 23, affords to a party a limited exemption from discovery on deposition, which does not extend to third persons. Bradley's Petition, 71 N.H. 54. See Reynolds v. Company, 98 N.H. 251. Witnesses may properly be required to produce nonprivileged information at a trial (Boston Maine R. R. v. State, 75 N.H. 513; Marceau v. Orange Realty Inc., 97 N.H. 497, and for the reasons set forth in the LaCoss case may be compelled to do likewise in advance of trial. Precedent for such an order may be found in Lefebvre v. Somersworth Co., 93 N.H. 354, 356, and there is no indication that the relief there granted in any way rested upon the circumstance that the desired information ordered to be discovered originated with a party to the pending action. See also, Drake v. Bowles, 97 N.H. 471.
We are urged to extend to statements procured by the company's claim investigator the rule with respect to the "work product of the lawyer," established by Hickman v. Taylor, supra, 511, under the Federal Rules of Procedure. Those rules are not binding upon our courts. The holding of the decision was restricted to denial of an order for inspection of statements obtained by the attorney for the defendant in preparing for trial, where such inspection was sought as a matter of right and without showing good cause. The opinion of the court stated: "We do not mean to say that all written materials obtained or prepared by an adversary's counsel with an eye toward litigation are necessarily free from discovery in all cases." Hickman v. Taylor, supra, 511. Subsequent decisions of the federal courts have shown reluctance to extend the rule to the work product of claim agents, insurers and investigators. See 4 Moore's Federal Practice (2nd ed.) s. 26.23 [8]; 7 Vanderbilt Law Rev. 521, 541; Durkin v. Pet Milk Co., 14 F.R.D. 385; Bifferato v. States Marine Corp. of Del., 11 F.R.D. 44. The Federal decisions are not persuasive support for the arguments made by the excepting parties on the facts of this case. See "Discovery of Trial Preparations," 50 Col. L. Rev. 1026, 1057, 1059. If cases may arise where the work product of investigators or others is shown to be so far akin to that of a lawyer as to merit like protection from disclosure, justice may be thought to require such protection. The record in the pending actions however does not establish that this is such a case. The statements ordered to be produced are less the "work product" of the investigator than they are a record of facts known to witnesses, one or more of whom are now unavailable to the parties to the pending tort action. See 4 Moore, supra. p. 1139-40.
So far as the order relates to information concerning the pole, there was no error. The suggestion now made that only records of the defendant Public Service Company of New Hampshire can be important cannot be accepted. The history of the pole and its location during a period of changing traffic conditions, as disclosed by telephone company records may well be an essential part of the plaintiff's preparation for trial. See Bourget v. Company, 98 N.H. 237.
Issues relating to the deposition are largely disposed of by what has been said, and by established principles. That questions called for hearsay did not justify a refusal to answer. Staargaard v. Company, supra. Information thus disclosed might well lead to competent evidence. If the deposition should be offered in evidence at the trial, objection may then be made. Only objections which can be obviated at the taking of the deposition are waived if not made at that time. See Kingsbury v. Moses, 45 N.H. 222; Whipple v. Stevens, 22 N.H. 219, 224-5. The order requiring that the witness Hatfield refresh his recollection by examining the file at Boston might be thought open to objection because of the "dangers of inaccuracy and untrustworthiness." Hickman v. Taylor, supra, 513. However it was calculated to place the witness in a position to describe the nature of contents of the file, and thus enable the plaintiff to intelligently seek additional discovery if circumstances warranted. It does not appear that the order was without justification.
Exceptions overruled.
All concurred.