Burlington Northern, Inc. v. North Dakota Dist. Court, Richland County, Third Judicial Dist.

• Decision Date: 02 March 1978
• Docket Number: No. 9446,9446
• Parties: BURLINGTON NORTHERN, INC. and Arthur M. Swenson, Petitioners, v. NORTH DAKOTA DISTRICT COURT, RICHLAND COUNTY, THIRD JUDICIAL DISTRICT, and Donald L. Ruby, Respondents. Civ.
• Court: North Dakota Supreme Court

Page 453

264 N.W.2d 453

BURLINGTON NORTHERN, INC. and Arthur M. Swenson Petitioners, v. NORTH DAKOTA DISTRICT COURT, RICHLAND COUNTY, THIRD JUDICIAL DISTRICT, and Donald L. Ruby, Respondents.

Civ. No. 9446.

Supreme Court of North Dakota.

March 2, 1978.

Nilles, Hansen, Selbo, Magill & Davies, Ltd., Fargo, for petitioners; argued by Stephen W. Plambeck, Fargo.

Vogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, for respondents; argued by Carlton J. Hunke, Fargo.

SAND, Justice.

Burlington Northern, Inc., in an original proceeding, petitioned this court to exercise its original jurisdiction and issue an order to show cause why an appropriate prerogative writ should not be issued requiring the Richland County district court to vacate paragraphs 5 and 9 of its order dated 21 December 1977, and why a stay order should not be issued in the case entitled Donald L. Ruby v. Burlington Northern, Inc., and Arthur M. Swenson until the determination of the issues, or until further order of the court. An order to show cause was issued, and pursuant thereto a hearing was held on the question whether or not this court should exercise its original jurisdiction and on the merits of the case. As part of the order to show cause the requested temporary restraining order was issued.

The present proceedings arise out of an action instituted by Donald L. Ruby against Burlington Northern, Inc., and Arthur M. Swenson for personal injuries he sustained when the motor vehicle he was driving collided with a Burlington Northern train at a grade crossing in Dwight, North Dakota, on 18 September 1972.

In his discovery, Ruby employed depositions and served interrogatories upon Burlington Northern and Mr. Swenson. Burlington Northern objected to two interrogatories whereupon Ruby applied to the district court and obtained an order directing Burlington Northern to answer and furnish the material requested in the two interrogatories. Burlington Northern then petitioned this court, as stated above.

Paragraphs 5 and 9 of the order issued by the district court which are contested here are as follows:

"5. Plaintiff's motion to compel defendants to answer Interrogatory No. 16 and to produce the investigation report prepared and submitted to Mr. W. E. Jones, General Manager Claims, Burlington Northern, Inc., at St. Paul, Minnesota, following the accident involved in this litigation is hereby granted.

"9. Plaintiff's motion to compel defendants to produce copies of the statements or memorandums of statements of Wesley G. Rittenhouse and Arthur M. Swenson and all of the statements or memorandums of statements referred to in defendants' Answer No. 4 to plaintiff's first set of interrogatories is hereby granted."

At the threshold we are met with two basic questions:

(1) Whether or not this court should exercise its original jurisdiction and, if so,

(2) Did the district court err in requiring Burlington Northern to answer the interrogatories and produce the information requested in paragraphs 5 and 9 of its order.

Article IV, § 86, of the North Dakota Constitution gives the North Dakota Supreme Court "original jurisdiction with authority to issue, hear, and determine such original and remedial writs as may be necessary to properly exercise its jurisdiction." In addition, §§ 27-02-04, 32-34-01, and 32-35-02, North Dakota Century Code, provide further statutory authorization for supervisory writs, writs of mandamus, and writs of prohibition.

On numerous occasions this court has stated that its power to issue original and remedial writs, even upon a proper showing, is discretionary and that its power cannot be invoked as a matter of right but will be employed to prevent possible injustice. From this it necessarily follows that the court itself, on a case-by-case basis, will determine whether or not it should exercise its original jurisdiction. State ex rel. Vogel v. Garaas, 261 N.W.2d 914 (N.D.1978); State ex rel. Foughty v. Friederich, 108 N.W.2d 681 (N.D.1961); State ex rel. Lyons v. Guy, 107 N.W.2d 211 (N.D.1961).

A review of the foregoing cases clearly demonstrates that this court has considered a number of factors in determining whether or not a writ should be issued and has exercised its discretionary authority only in those matters where the ends of justice require it.

In Ingalls v. Bakken, 167 N.W.2d 516, 518 (N.D.1969), this court said:

"Unless the action of the trial court, which the Supreme Court is asked to supervise, is such that it will result in grave or serious prejudice to the applicant, and for which the applicant has no adequate remedy, the application for such supervisory writ will be denied."

Burlington Northern contends Ruby failed to make a proper showing as required by Rule 26(b)(3), NDRCivP, for the order, and in addition explained that once the disclosures, as directed by paragraphs 5 and 9, are made they cannot be "unmade," and that if Burlington Northern persists in refusing to produce the documents the trial court might impose sanctions, and as such Burlington Northern would suffer severe irreparable injury.

Both parties urged that this matter be quickly disposed of so that the case may be tried at its appointed time.

It appears that the district court order of 21 December 1977 is not appealable (Northwest Airlines, Inc. v. State Board of Equalization, 244 N.W.2d 708 (N.D.1976)) and that Burlington Northern does not have a plain and speedy remedy in the ordinary course of law and that the ends of justice require this court to act. We therefore believe an adequate showing has been made for this court to exercise its original jurisdiction.

The basic issue in this case is whether or not the district court erred in compelling Burlington Northern to answer the interrogatories and produce the information requested in paragraphs 5 and 9 of its order.

The issue involves the interpretation of Rule 26(b)(3), North Dakota Rules of Civil Procedure, which, as is material here, provides as follows:

"Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

"A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is

(A) a written statement signed or otherwise adopted or approved by the person making it, or

(B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded."

(Emphasis added.)

This rule was derived from the Federal Rules of Civil Procedure, Rule 26(b), and therefore any construction placed upon the federal rule by the federal courts will be entitled to great weight in construing and interpreting the North Dakota Rule 26(b)(3). The party seeking discovery of certain documents and tangible things under Rule 26(b)(3), NDRCivP, must make a showing that he has substantial need of the materials in the preparation of the case and that he is unable, without undue hardship, to obtain the substantial equivalent of the materials by other means. Significantly, however, the rule also provides that when the required showing has been made the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

The phrase, "upon a showing," as found in Rule 26(b)(3), NDRCivP, implies more than merely presenting a motion and an argument. It requires the presentation of facts upon which the court may make its determination, and at the discretion of the court, an evidentiary hearing may be held to accomplish this.

With the provisions of Rule 26(b)(3), NDRCivP, in mind, we gleaned the record, as presented, including briefs and oral arguments, but not responses to interrogatories, for essential information and facts needed to resolve the issue before us. Unfortunately, we were unsuccessful. There is no adequate record of the proceedings conducted before the trial court and without it we were unable to determine what occurred or what was presented to the trial court. We believe it is self-evident that facts sets out in oral arguments are not considered facts unless the parties have agreed or stipulated that they are the facts in the case. This court is not clairvoyant. It must rely upon the facts in the record as made and submitted or as made before this court. This is...