Butler v. Doyle

• Decision Date: 31 December 1975
• Docket Number: No. 12293,12293
• Citation: 544 P.2d 204,112 Ariz. 522
• Parties: William BUTLER and Joanna Jean Butler, husband and wife, Petitioners, v. The Honorable Lawrence H. DOYLE, Jr., Judge of the Superior Court of Arizona, Maricopa County, Donald E. Lee and Bette Ann Lee, husband and wife, Donald A. Davis and Jeanne Davis, husband and wife, Respondents.
• Court: Arizona Supreme Court

Page 204

544 P.2d 204

112 Ariz. 522

William BUTLER and Joanna Jean Butler, husband and wife, Petitioners, v. The Honorable Lawrence H. DOYLE, Jr., Judge of the Superior Court of Arizona, Maricopa County, Donald E. Lee and Bette Ann Lee, husband and wife, Donald A. Davis and Jeanne Davis, husband and wife, Respondents.

No. 12293.

Supreme Court of Arizona, In Banc.

Dec. 31, 1975.

Browder & Gillenwater, by Robert W. Browder, Keane & Vermeire by Albert R. Vermeire, Phoenix, for petitioners.

Jones, Teilborg, Sanders, Haga & Parks, by Frank A. Parks and James R. Broening, Phoenix, for respondents Lee.

Burch, Cracchiolo, Levie, Guyer & Weyl, by Kenneth C. Weyl, Phoenix, for respondents Davis.

HOLOHAN, Justice.

Petitioners by special action challenge the order of the respondent judge denying discovery of statements given by respondent physicians, Lee and Davis, to their insurance carrier.

Petitioners are plaintiffs in a malpractice action against the respondent physicians. Prior to the filing of petitioners' complaint in the superior court, each of the respondent physicians prepared handwritten statements for their insurance carrier. The statements pertained to the care and treatment of petitioner Joanna Butler by the respondent physicians. After the filing of the complaint by petitioners, a request to produce the statements were served on respondents, and they objected to the production of their statements.

Petitioners filed a motion for an order compelling discovery. The respondent physicians resisted the motion alleging that their statements were not discoverable because they were trial preparation material, protected by Rule 26(b)(3) of the Rules of Civil Procedure, and the statements were privileged communications pursuant to A.R.S. § 12--2234 (attorney-client privilege). The respondent judge denied discovery on the grounds that the statements were trial preparation material. This special action followed.

In State Farm Insurance Co. v. Roberts, 97 Ariz. 169, 368 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. As amended, the first paragraph of Rule 26(b)(3) provides:

'(3) Trial preparation: Materials. 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 order 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.'

The purpose of the amendment is described as:

'The 1970 amendment also resolves some disagreement in the cases about material obtained by a party's indemnitor. It has always been clear that an attorney retained by an insurance company to represent a party enjoys the same immunity as an attorney retained directly by the party. Indeed in the Hickman case itself the lawyer involved was retained both by the tug owners and by their underwriters. Rule 26(b)(3) protects documents prepared for litigation by or for a party's representative, including his indemnitor or insurer. Thus it will now be clear that a report from the insured to the insurer is within the immunity as also will be statements obtained by investigators for the insurer.

'The 1970 amendment extends the work product protection to documents and things prepared for litigation or trial by or for the adverse party himself or his agent. Prior to the amendment some cases held that documents of this kind were not within the immunity.' (Footnotes omitted.) Wright & Miller, Federal Practice and Procedure: Civil § 2024, at pp. 206, 207.

The amended rule covers documents prepared in anticipation of litigation for the party's representative which would include the insurer. The rule, however, makes such material discoverable upon a showing of substantial need and inability without undue hardship to obtain the substantial equivalent by other means.

Petitioners contend that they have met the requirements of Rule 26(b)(3). We agree. The statements prepared by the physicians giving a summary of their care of the patient are...