Sea Colony West Phase I Condominium Ass'n, Inc. v. Sea Colony, Inc.
| Decision Date | 07 October 1981 |
| Citation | 438 A.2d 1233 |
| Parties | SEA COLONY WEST PHASE I CONDOMINIUM ASSOCIATION, INC., Plaintiff, v. SEA COLONY, INC., R. E. Ward, Inc., Sussex Electrical Construction Co., and Carl M. Freeman Associates, Inc., Defendants. |
| Court | Delaware Superior Court |
Sea Colony, Inc. (Sea Colony) and Carl M. Freeman Associates, Inc. (Freeman) have moved to compel discovery of certain reports prepared by an expert for co-defendant Sussex Electrical Construction Company (Sussex Electrical).
On March 3, 1977, a fire occurred at Building 12 of the Sea Colony West Condominium development. Plaintiff instituted the present action on March 3, 1980. Prior to this suit, an action had been filed by some of the condominium unit owners for damages and injuries resulting from the fire. That action, filed in this Court as Mulvena v. Sea Colony, C.A. No. 78C-JN6, was settled and a stipulation of dismissal was filed. In Mulvena, in which the defendants were identical to those in the present action, a letter supplement to the interrogatory answers of Sussex Electrical indicated that Mr. Paul Kaczmarczik, M.S.E.E. would provide expert testimony on its behalf.
During the course of discovery for the present action, Sussex Electrical answered interrogatories submitted to it by co-defendants Sea Colony and Freeman. In an answer it identified two reports prepared on its behalf by Mr. Kaczmarczik in anticipation of litigation in the Mulvena case. Sea Colony and Freeman filed a request for production pursuant to Superior Court Civil Rule 34 in which they sought discovery of the reports. Sussex Electrical objected to production on the basis of work product immunity. Thereafter, pursuant to Superior Court Civil Rule 37(a), defendants Sea Colony and Freeman filed the present motion to compel production of the expert's reports.
Superior Court Civil Rule 26(b)(3), which is identical to the Federal Rule, sets forth the work product doctrine. It requires a special showing of substantial need and an inability to obtain substantially equivalent material without undue hardship in order to allow the granting of discovery for those materials prepared by an attorney or his representative in anticipation of litigation or for trial. The parties have argued in their briefs for and against the proposition that the work product doctrine should be extended to cover the expert's reports which were prepared for the previous, terminated litigation. I believe that a discussion of the issue of whether the work product doctrine should be extended to protect from discovery documents prepared in anticipation of prior, terminated litigation is unnecessary and would be inappropriate under the facts of this case. The parties have failed to apply correctly the relevant provisions of Rule 34 and 26.
As to the request for production of the expert's reports pursuant to Rule 34, the amendment of both the Delaware and Federal Rules in 1970 removed the requirement that there must be a finding of "good cause" in order to permit discovery of documents and things. That requirement was eliminated because it furnished uncertain and erratic protection to the parties from whom production was sought. It was rendered unnecessary by virtue of the more specific provisions of Rule 26(b), also added in 1970, which relates to materials assembled in preparation for trial and to experts retained or consulted by parties. See Advisory Committee Note, 48 F.R.D. at p. 526. As the Advisory Committee stated elsewhere: "Apart from trial preparation, the fact that the materials sought are documentary does not in and of itself require a special showing beyond relevance and absence of privilege." Therefore trial preparation materials are discoverable if they meet the relevant special showing requirements set forth in Rule 26(b).
By its express provision, subdivision (b)(3) of Rule 26 is made subject to the provisions of subdivision (b)(4). That subdivision provides in pertinent part:
Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this Rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) Upon motion, the Court may order further discovery by other means, subject to such restrictions as to scope and such provisions ... concerning fees and expenses as the Court may deem appropriate.
Under Rule 26(b)(4) separate methods of discovery are provided for those experts expected to testify at trial and those who are not. Since Mr. Kaczmarczik is expected to testify in the present action, discovery of the two reports setting forth his knowledge and opinions is governed by Rule 26(b)(4) (A) set forth above. The primary purpose of this subsection is to permit the opposing party to prepare an effective cross-examination. See Advisory Committee Note, 48 F.R.D. at pp. 503-504. In the present case the information permitted to be discovered under subsection (b)(4)(A)(i) has already been received as a result of the discovery obtained for the prior, terminated litigation.
Further discovery may proceed only upon order of the Court. Rule 26(b)(4)(A) (ii). The Advisory Committee, in drafting the Federal Rule, was silent as to what standard of need, if any, is required in order to obtain further discovery. Several federal courts have done as the parties in the present action assume is required and applied the requirements set forth in subdivision (b)(3) of Rule 26 in order to determine whether further discovery should be granted. See United States v. 145.31 Acres of Land, 54 F.R.D. 359 (M.D.Pa.1972); Breedlove v. Beech Aircraft Corp., 57 F.R.D. 202 (N.D.Miss.1972); and Wilson v. Resnick, 51 F.R.D. 510 (E.D.Pa.1970).
It is my opinion that a careful reading of subdivisions (b)(3) and (b)(4) leads to the conclusion that the requirements for overcoming the qualified immunity from discovery provided by the work product doctrine in subdivision (b)(3) are not intended to be applied to discovery of experts' materials. Instead, under (b)(4)(A)(ii) further discovery of expert's knowledge and opinions is to be granted by the Court when appropriate; i.e., that further discovery should be granted where the party seeking discovery is not abusing the procedure and the information sought would prove helpful in providing for a full and fair adjudication.
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Polum v. North Dakota Dist. Court, Stark County, Southwest Judicial Dist.
...that the work-product doctrine does not encompass expert information. See, e.g., Sea Colony West Phase I Condominium Association, Inc. v. Sea Colony, Inc., 438 A.2d 1233, 1235-1236 (Del.Super.Ct.1981); Mims v. Casademont, 464 So.2d 643, 644 (Fla.Dist.Ct.App.1985); American Buildings Co. v. ......
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Nutter v. Maynard
...favors discovery, but decision is ultimately left to sound discretion of trial judge); Sea Colony West Phase I Condominium Ass'n, Inc. v. Sea Colony, Inc., 438 A.2d 1233 (Del.Super.Ct.1981) (reports from expert witnesses which were prepared for earlier litigation that was terminated were Ot......