312 F.2d 533 (8th Cir. 1963), 17068, Edgar v. Finley

Docket Nº:17068.
Citation:312 F.2d 533
Party Name:Maizie Boling EDGAR, Appellant, v. Deborah FINLEY, a minor, by Edward Finley, her next friend, Appellee.
Case Date:January 17, 1963
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 533

312 F.2d 533 (8th Cir. 1963)

Maizie Boling EDGAR, Appellant,


Deborah FINLEY, a minor, by Edward Finley, her next friend, Appellee.

No. 17068.

United States Court of Appeals, Eighth Circuit.

January 17, 1963

Rehearing Denied Feb. 11, 1963.

Page 534

Samuel Richeson, of Dearing, Richeson & Weier, Hillsboro, Mo., for appellant.

William H. Corcoran, of Walsh, Hamilton & Corcoran, St. Louis, Mo., for appellee.


MATTHES, Circuit Judge.

This diversity case, removed to the United States District Court, arose from an automobile collision in which plaintiff, Deborah Finley, a minor, was injured while riding as a passenger in an automobile that was being operated by her mother, Joan Finley. A jury awarded plaintiff $15,000 as damages, and from the judgment entered on the verdict, defendant has appealed.

In issue are: (1) whether the court committed prejudicial error in sustaining objections of plaintiff to interrogatories propounded by defendant; and (2) whether the court abused its discretion in denying defendant's motion for a new trial on the ground of newly discovered evidence. A brief resume of the proceedings which are focused upon the events giving rise to the appeal will suffice.

On September 30, 1960, defendant propounded interrogatories to plaintiff, requesting the identity and location of persons known to plaintiff or to anyone acting for her, 'having knowledge of relevant facts with respect to the accident collision out of which the pending litigation arose.' 1 In objections to the interrogatories, plaintiff admitted knowledge of the name and address of 'a person who arrived at the scene of the collision in question shortly after its occurrence' but claimed the information so possessed was privileged because it was received by plaintiff's attorney from another attorney 'under the condition and promise that he (plaintiff's attorney) would not disclose the same to the Defendant herein or her attorneys.'

On March 7, 1961, the court sustained plaintiff's objections to the interrogatories, citing as authority for its action O'Brien v. Equitable Life Assurance Society of United States, D.C., 13 F.R.D. 475 (1953), and Pacific Intermountain Express Co. v. Union Pacific Railroad Co., D.C., 10 F.R.D. 61 (1950).

The critical issue in controversy at the trial, commenced on March 6, 1961, was whether the Finley automobile, proceeding southwardly, was to the west (right) of the center line of the four lane concrete highway at the time of the collision with defendant's automobile. Plaintiff's mother testified that the collision occurred on her side of the highway, whereas defendant testified that she was to the right of the center line as she was proceeding northwardly on the highway, and that plaintiff's automobile crossed the center line and then collided with her automobile. Since there was other evidence tending to corroborate defendant's version of the accident, the question of defendant's fault or liability was a close one and could have been resolved in favor of either party.

Issue No. 1-- the court's action in sustaining objections to the interrogatories on the claimed basis of privilege may be disposed of without extended discussion.

Page 535

While the trial court is vested with reasonable discretion in determining whether discovery is to be allowed, Wray M. Scott Company v. Daigle, 8 Cir., 309 F.2d 105, 110 (1962); Bell v. Swift & Company, 5 Cir., 283 F.2d 407 (1960), it is no longer open to debate that the discovery rules should be given a broad, liberal interpretation. The Supreme Court made this clear in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947) in this language:

'We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of 'fishing expedition' serve to preclude a party from inquiring into the facts underlying his opponent's case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.' 329 U.S. at 507, 67 S.Ct. 392.

There are, of course, limitations upon the right to obtain evidence and information through the discovery processes. Rule 33, Fed.R.Civ.P., which authorizes the filing of interrogatories, provides in part that the 'interrogatories may relate to any matters which can be inquired into under Rule 26(b) * * *' and Rule 26(b) expressly provides that 'unless otherwise ordered by the court as provided by Rule 30(b) or (d), the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action * * * including * * * the identity and location of persons having knowledge of relevant facts.' What is or is not privileged matter within the meaning of the rules had been the subject of considerable concern by the courts until clarified in the Hickman case, supra. There, in considering whether statements taken by an attorney in the investigation of the sinking of a tug fell within the category of privileged matter, the court stated:

'But discovery, like all matters of procedure, has ultimate and necessary boundaries. As indicated by Rules 30(b) and (d) and 31(d), limitations inevitably arise when it can be shown that the examination is being conducted in bad faith or in such a manner as to annoy, embarrass or oppress the person subject to the inquiry. And as Rule 26(b) provides, further limitations come into existence when the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege.

'We also agree that the memoranda, statements and mental impressions in issue in this case fall outside the scope of the attorneyclient privilege and hence are not protected from discovery on that basis. It is unnecessary here to delineate the content and scope of that privilege as recognized in the federal courts. For present purposes, it suffices to note that the protective cloak of this privilege does not extend to information which an attorney secures from a witness while acting for his client in anticipation of litigation.' 329 U.S. 507-508, 67 S.Ct. 392.

For an exhaustive treatment of privilege as related to the discovery process, including many cases decided subsequent to Hickman, see 4 Moore, Federal Practice, 26.19 et seq., pp. 1075-1150...

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