Clarkson Industries, Inc. v. Price

• Decision Date: 23 September 1975
• Docket Number: No. 50898,No. 3,50898,3
• Citation: 135 Ga.App. 787,218 S.E.2d 921
• Parties: CLARKSON INDUSTRIES, INC. v. W. T. PRICE
• Court: Georgia Court of Appeals

Page 921

218 S.E.2d 921

135 Ga.App. 787

CLARKSON INDUSTRIES, INC. v. W. T. PRICE.

No. 50898.

Court of Appeals of Georgia, Division No. 3.

Sept. 23, 1975.

Syllabus by the Court

The trial court did not err in overruling objections to interrogatories.

Appellee served interrogatories on appellant in this personal injury action. The interrogatories requested the names, addresses and telephone numbers of eyewitnesses to the incident complained of and also asked if any statement or report had been made by any of them. The interrogatory continued: '3. If so, please describe each such statement or report, giving as to each such statement or report: (a) the person by whom it was made; (b) the date made; (c) who was present when made; (d) the form (whether oral, written, recorded, etc.); (e) the subject; (f) the substance or contents; (g) the present location and the name and address of the person having custody, control, or possession of the original and/or copies thereof.' (Emphasis supplied.)

Appellant objected to the quoted interrogatory number three and refused to answer, stating instead: 'Objection. This interrogatory directly seeks information about Clarkson Industries' efforts to prepare for trial and such information is not discoverable.' The trial court overruled the objection, requiring appellant to answer. The issue is on interlocutory appeal before this court. Appellant contends that interrogatory 3(f) is protected from discovery by the 'work product' principle and that the interrogatory as a whole is objectionable as an attempt to discover its efforts to prepare for trial.

Webb, Fowler & Tanner, W. Howard Fowler, J. L. Edmondson, Lawrenceville, for appellant.

G. Hughel Harrison, N. Forrest Montet, P. C., David M. Leonard, Atlanta, for appellee.

DEEN, Presiding Judge.

Appellant relies on the 'work product' exception to the otherwise broad scope of discovery envisioned by Code Ann. § 81A-126(b)(1). The work product doctrine stems from Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, in which the United States Supreme Court refused to require discovery of statements of witnesses obtained by an attorney after a claim arose but prior to litigation. Under our former discovery law, Code Ann. § 38-2101 et seq., it was held that 'work product' included oral statements taken by an attorney from witnesses. Setzers Super Stores of Georgia v. Higgins, 104 Ga.App. 116, 121 S.E.2d 305.

Our present law on discovery is to be found in Ga.L.1972, p. 510 et seq. (Code Ann. § 81A-126, et seq.) which completely replaced the old Civil Practice Act provisions in order to conform them to their amended counterparts in the Federal Rules of Civil Procedure. The legislative intent clearly appears '. . . to comprehensively and exhaustively redefine, modernize and supersede the provisions relating to depositions and discovery and the scope thereof . . .' Ga.L.1972, p. 510. (Emphasis supplied.)

In conformity with this expression of legislative intent, the courts have consistently given wide latitude to the discovery process so as to make it as complete as possible. 'The broad purpose of the discovery rules, under the Civil Practice Act, is to enable the parties to prepare for trial so that each party will know the issues and be fully prepared on the facts. Discovery is specifically designed to fulfill a two-fold purpose: issue formulation and factual revelation. The use of the discovery process has been held to be broadly construed.' Travis Meat & Seafood Co., Inc. v. Ashworth, 127 Ga.App. 284, 285-286, 193 S.E.2d 166, 168. Thus we have held that all statements taken by attorneys are not work product and that the mere fact that the statement is taken 'with an eye toward litigation' does not automatically insulate it from discovery as 'work product.' Ford Motor Co. v. Hanley, 128 Ga.App. 311, 313(1), 196 S.E.2d 454. Most importantly we have held the real purpose of the 'work product' exception to the general broad scope of discovery to be the protection of 'the mental impressions, conclusions and theories of persons engaged in preparing the litigation.' Moore-Handley, Inc. v. Wilkes, 131 Ga.App. 251, 253, 205 S.E.2d 896, 898. (Emphasis supplied.)

The new discovery statute, as amended, extends the 'work product' exception to parties and their representatives such as attorneys, consultants, sureties, indemnitors, insurers or agents. In order to escape discovery under Code Ann. § 81A-126(b)(3) the documents and tangible things must have been prepared in anticipation of litigation or for trial by or for a party or by or for that party's representative and the materials must contain the mental impressions, conclusions, opinions, or legal theories of the person preparing them. If the items sought do not satisfy both requirements, they do not constitute 'work product' and may be freely discovered. If however, the materials do qualify under this test, the party seeking discovery must show a substantial need of them in preparation of his case and an inability to obtain the substantial equivalent of the materials by other means without undue hardship. If substantial and undue hardship is adequately demonstrated, discovery may be had but the court must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of the preparer.

In the case sub judice, appellee sought to discover through interrogatories information concerning statements made by witnesses about the accident. Appellant objected that the information sought was not discoverable because it related to appellant's 'efforts to prepare for trial.' 'The burden is on a party served with interrogatories to show to the judge why the questions should not be answered.' Williamson v. Lunsford,119...