Atlantic Coast Line R. Co. v. Daugherty

• Decision Date: 18 January 1965
• Docket Number: 2,Nos. 1,No. 41021,41021,s. 1
• Court: Georgia Court of Appeals
• Parties: ATLANTIC COAST LINE RAILROAD COMPANY et al. v. Anna L. DAUGHERTY, Administratrix. & 3

Page 112

141 S.E.2d 112

111 Ga.App. 144

ATLANTIC COAST LINE RAILROAD COMPANY et al. v. Anna L. DAUGHERTY, Administratrix.

No. 41021.

Court of Appeals of Georgia, Division Nos. 1, 2 & 3.

Jan. 18, 1965.

Rehearing Denied Feb. 8, 1965.

Syllabus by the Court

1. (a). Matters which are privileged are not discoverable under the Discovery Act; what is privileged is to be determined by other statutes. Statements obtained by an investigator, claims agent or adjuster in the regular course of his duties and in the regular course of the employer's business are not privileged.

(b). The contrary holding in Atlantic Coast Line R. Co. v. Williams, 21 Ga.App. 453(2), 94 S.E. 584 is specifically overruled.

2. The work product of an attorney, reflected in such matters as interviews that he may have held, statements he may have obtained from witnesses or which may have been obtained under his supervision and direction, memoranda, correspondence, briefs, mental impressions, personal beliefs, and the like, made or obtained in anticipation of litigation or for the purpose of preparing a defense to pending litigation, are not discoverable, absent a showing of necessity or justification.

3. (a). The good cause required to be shown for the production of documents, statements, and the like, under Code Ann. § 38-2109(a), while more than a mere showing that the desired documents exist, may be relevant to the issues and are in the defendant's possession, is to be determined by the trial judge in the light of the situation before him. The requirement has reference to matters which do not come within the work product protection of the attorney.

(b). The necessity or justification which must be shown to secure production of matters within the work product protection of the attorney is of a higher order than the good cause requirement for other items. The showing should lead the court to conclude that if discovery is not permtted a manifest injustice or intolerable hardship will result.

Mrs. Anna L. Daugherty, as temporary administratrix of the estate of her husband, Leeland E. Daugherty, filed suit February 4, 1964, against the Atlantic Coast Line Railroad Company under the FELA for damages on account of the death of the husband, a member of the railroad's switching crew who was killed January 20, 1963, when struck by a northbound passenger train. On April 30, 1964, after defensive pleadings had been filed, plaintiff filed and served her motion for the production for inspecting and copying of the following:

'1. Any and all statements taken by any agents or employees of the Atlantic Coast Line Railroad Company from the dispatcher employed by the defendant at the Jesup Yard identified in paragraphs 11 and 13 of the Court I in the petition of plaintiff, relating to the events described in said petition.'

In similar language movant sought statements taken from defendant's conductor, engineer, fireman, or other crewmen who operated the passenger train, and the switch engine.

Attached to the motion was an affidavit of plaintiff's attorney that 'he has reason to believe that ehe statements and documents requested in the foregoing motion are in existence and that they are in the possession, power or control of the defendant Atlantic Coast Line Railroad Company; and, that said statements and documents concern said cause for the reasons set forth in the petition of plaintiff, the contents of which are incorporated in the within affidavit just as if the allegations therein were set forth herein at length, and are therefore relevant and material to the issues in said petition.'

The defendant railroad filed its response and objections to the motion as follows:

'1. In response to paragraph 1 of the motion defendant advises that the dispatcher employed by the defendant, identified in paragraphs 11 and 13 of Court 1 of the petition, was W. L. Barefoot, Jr., whose address is 1002 East Myrtle Avenue, Waycross, Georgia.

'Defendant objects to the production of the statement given by the said W. L. Barefoot, Jr., for the following reasons:

'(a) Because the plaintiff has shown no good cause for the production of such a statement.

'(b). Because the statement signed by the said W. L. Barefoot, Jr., Dispatcher of the defendant is a privileged communication because the same was obtained by the defendant and transmitted to its counsel, in whose possession it now is, in order that counsel might advise defendant as to whether there was liability on its part for anything connected with the transaction reported, and to enable such counsel to prepare for the defense of defendant if litigation should arise out of the occurrence, which report was duly transmitted into the hands of such counsel as is proper custodian.

'(c). Because said witness is now and has been since the date of the accident available for interview by the plaintiff and available for the taking of his deposition by the plaintiff, and there is no good cause shown or existing why such document should be produced.'

Similar responses and objections were made relative to statements from the conductor, fireman, engineer and other crew members, but their names and addresses were given in each instance.

The matter came on regularly for hearing, at which the only evidence introduced in support of the motion was the attorney's affidavit, and the judge entered the following order:

'The motion of plaintiff for production, together with the response and objections of defendant to certain items coming on for hearing on this day, and after considering the motion, the affidavit attached thereto, and the objections of defendant, it is ordered:

'1. That the defendant, and its superintendent, W. W. Huckeba, produce the statements of the employees described in paragraph 1, 2, 3, and 4 of plaintiff's motion, whose names are furnished in paragraphs 1, 2, 3, and 4 of defendant's response and objections; these statements, or copies thereof, to be furnished instanter to plaintiff's counsel, or that he be advised instanter when and where he can copy the same;

'2. Defendant in its response having expressed a willingness to produce all other documents which may be in its possession as described in the other paragraphs of the petition, no further order is required at this time respecting such items.'

The statements referred to in paragraph 1 of the order were not produced and no information was given to plaintiff's counsel as to when or where he might see and copy them.

Thereafter a rule nisi was issued directing the railroad and its superintendent to show cause why they should not be adjudged in contempt for failure to comply with the order. Upon a hearing they were adjudged in contempt, and the superintendent was ordered imprisoned until he and the railroad should purge themselves by production of the documents. To that judgment plaintiffs in error except.

Bennett, Pedrick & Bennett, Larry E. Pedrick, Waycross, charlton E. Symmes, Jesup, for plaintiffs in error.

Joseph B. Bergen, Savannah, for defendant in error.

EBERHARDT, Judge.

At common law no man was bound to furnish evidence to be used against himself. The privilege before trial of inspecting documents, articles, and the like in possession of an adversary was simply not accorded a litigant. These could be obtained at the time of trial by the giving of a notice to produce--the penalty for failing to produce being the admission of secondary evidence, but discovery was available only by means of a bill in equity.

In this State the equitable proceeding, itself a somewhat cumbersome thing clothed with restrictions and technicalities, has been used but little. It is available only when there is no other adequate remedy. Coca-Cola Co. v. City of Atlanta, 152 Ga. 558, 110 S.E. 730, 23 A.L.R. 1339. Code Ch. 38-11. Discovery has been available at law since 1847. Code Ann. § 38-1201 et seq. But this method, too, has not been in general use. Indeed, both at law and in equity, it is discouraged by the provision of Code § 38-1302: 'A petition for discovery merely, or to perpetuate testimony, shall not be sustained unless some reason shall be shown why the usual proceeding at law is inadequate.'

It was a rather sterile procedure until March 25, 1959, when the Discovery Act, designed to make discovery a simple, facile and effective practice, was adopted by the General Assembly. The new Act follows to a great extent provisions of the Federal Rules of Civil Procedure relating to the matter of discovery, and is in keeping with the practice adopted by many of the other States. The old common law rules in this area have been pretty well abandoned in England and it has become an established practice in the courts of that county to afford discovery on a somewhat similar basis.

While new with us, it is in keeping with the philosophy and the practices which have evolved and been adopted in legal circles throughout the English speaking world. We have had occasion to interpret the Act but few times since its adoption. See Reynolds v. Reynolds, 217 Ga. 234, 123 S.E.2d 115; Setzers Super Stores of Ga. Inc. v. Higgins, 104 Ga.App. 116, 119, 121 S.E.2d 305; Underwood v. Atlanta & W. P. R. Co., 105 Ga.App. 340, 356, 124 S.E.2d 758; Tracy's Auto Parts, Inc. v. Turner, 105 Ga.App. 418, 124 S.E.2d 687; Floyd & Beasley Transfer Co. v. Copeland, 107 Ga.App. 304, 130 S.E.2d 143; Wilson v. Barrow, 107 Ga.App. 555(4), 130 S.E.2d 812; Fricks v. Cole, 109 Ga.App. 143, 146(3), 135 S.E.2d 512; Richardson v. Potter, 109 Ga.App. 559(4), 136 S.E.2d 493; Old Colony Ins. Co. v. Dressel, 109 Ga.App. 465, 136 S.E.2d 525, but see Old Colony Ins. Co. v. Dressel, 220 Ga. 354, 138 S.E.2d 886; Acres v. King, 109 Ga.App. 571, 136 S.E.2d 510; Rider v. Rider, 110 Ga.App. 382, 138 S.E.2d 621; Sorrells v. Cole, infra; Grasham v. Sou. Ry. Co. [Ga.App., 141 S.E.2d 189] and Bradford v. Parrish [Ga.App., 141 S.E.2d 125]. In none of these cases, however, were the questions now before us answered. Only...