Dean v. Superior Court In and For Maricopa County, 6596

• Citation: 73 A.L.R.2d 1,324 P.2d 764,84 Ariz. 104
• Decision Date: 23 April 1958
• Docket Number: No. 6596,6596
• Parties: , 73 A.L.R.2d 1 Robert Ernest DEAN, Petitioner, v. The SUPERIOR COURT of the State of Arizona IN AND FOR COUNTY OF MARICOPA and the Honorable Charles C. Bernstein, One of the Judges Thereof, Respondent.
• Court: Supreme Court of Arizona

Page 764

324 P.2d 764

84 Ariz. 104, 73 A.L.R.2d 1

Robert Ernest DEAN, Petitioner, v. The SUPERIOR COURT of the State of Arizona IN AND FOR COUNTY OF MARICOPA and the Honorable Charles C. Bernstein, One of the Judges Thereof, Respondent.

No. 6596.

Supreme Court of Arizona.

April 23, 1958.

Walter Linton, Charles N. Ronan and Nathan Holt, phoenix, for petitioner.

Fennemore, Craig, Allen & McClennen, Philip E von Ammon and John J. O'Connor III, Phoenix, for respondent.

Snell & Wilmer, James H O'Connor, Stockton & Karam, Jennings, Strouss, Salmon & Trask and Nicholas Udall, Moore & Romley, and John H. Killingsworth, Phoenix, amici curiae.

JOHNSON, Justice.

The petitioner, Robert Ernest Dean, seeks a writ of prohibition to restrain the respondent court and the Honorable Charles C. Bernstein, one of the judges thereof, from enforcing an order for inspection under Rule 34, Rules of Civil Procedure, 16 A.R.S. The order was made in an action in which Charles B. Buck, a minor, seeks to recover demages from the petitioner for injuries sustained in an automobile accident while a guest in petitioner's automobile.

After a hearing on the motion the respondent court issued the following order requiring the petitioner to produce for inspection and copying all of the following documents:

'1. All written statements in the possession, custody or control of the defendant from every person who was or claims to have been a witness with respect to any matters material to the issues raised by the pleadings in this cause.

'2. All memoranda in the possession, custody or control of the defendant purporting to set forth the substance of any oral statements of every person who was or claims to have been a witness with respect to any matters material to the issues raised by the pleadings in this cause.

'3. Medical reports, X-rays, hospital records or other decuments in the possession, custody or control of the defendant relating to the injuries to or physical condition of the plaintiff Charles B. Buck.

'4. All other documents, letters, photographs, maps, drawings or sketches in the possession, custody or control of the defendant material to the issues raised by the pleadings in this cause.'

After oral argument we issued the alternative writ of prohibition restraining the respondent court from further proceedings.

Rule 34 requires the movant to show good cause for ordering the production of documents. In order to comply with Rule 34 plaintiff's counsel submitted an affidavit wherein he stated:

'That as alleged in the complaint of said cause, the plaintiff was injured while riding as a passenger in an automobile driven by defendant; that he was at the time of the accident on active duty in the United States Navy and absent on leave from his regular duty station; that immediately following the accident he was hospitalized in a United States Air Force Base Hospital and from there transferred to a naval hospital out of the state of Arizona; that by virtue of the disabling injuries, the immediate hospitalization and the fact that he was a stranger in the state of Arizona, and particularly at the place where the accident occurred, he has been unable to make an adequate investigation of the accident or to obtain information and statements from such persons as may have knowledge of the facts surrounding the accident; that in view of the facts and circumstances hereinabove set forth, plaintiff cannot safely proceed to the trial of this action without having an opportunity to inspect and copy such statements, memoranda of oral statements and other documents as may be in the possession, custody or control of the defendant relative to the issues raised by the pleadings in this cause. This affidavit is made upon information and belief.'

The order of the trial court to produce certain documents for inspection and copy presents for our consideration a construction of Rule 34 in many of its aspects. Prior to Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, according to Moore's Federal Practice, Vol. 4, 2d Ed., § 26.23(4), the federal courts in more than sixty cases considered the scope of discovery under the Federal Rules. Since then there have been innumerable decisions in both state and federal courts. The amici curiae urge, in the interest of the administration of justice and for the purpose of giving guidance to the legal profession and the bench of our state, that we fully consider and construe the various aspects involved in the order to produce pursuant to Rule 34.

Writ of Prohibition

It is well settled that prohibition lies to prevent an inferior court from acting without or in excess of jurisdiction, where wrong, damage and injustice are likely to follow and there is no plain, speedy and adequate remedy available. The order issued by the respondent requiring the petitioner to produce documents for inspection and copying did not emply with Rule 34, as respondent acted in excess of its jurisdiction and abused its discretion for the following reasons: (1) improper designation of the documents sought; (2) no showing of good cause; and (3) to showing that the items sought are relevant.

The trial court's order for inspection is not appelalable and prohibition is therefore the proper remedy. McCoy v. District Court of Larimer County, 126 Colo. 32, 246 P.2d 619; Holm v. Superior Court, 42 Cal.2d 500, 267 P.2d 1025, 268 P.2d 722; Union Oil Co. of California v. Superior Court, 151 Cal.App.2d 286, 311 P.2d 640.

Items Sought for Discovery and Inspection Must Be Designated

Rule 34, Rules of Civil Procedure, follows the Federal Rules of Civil Procedure, rule 34, 28 U.S.C.A. and specifically states that the items sought for discovery and inspection under this Rule must be designated.

It is an essential element of a motion to produce documents that those documents be designated with some reasonable degree of particularity and with such a description that will apprise a man of ordinary intelligence of the document desired. The moving party is required to be sufficiently specific in designating the documents desired that a trial court, in granting the motion to produce and the party against whom the order is directed, will be able to ascertain when the order has been fulfilled. Callen v. Pennsylvania R. Co., D.C.Pa. 1946, 5 F.R.D. 83, and United States v. American Optical Co., D.C.N.Y. 1942, 2 F.R.D. 534.

Where the movant is unable to specifically designate the matters sought we think the Rules provide a method for the movant to obtain the necessary information, as stated in Barron & Holtzoff, Federa Practice and Procedure, Vol. 2, p. 518:

'If movant does not have sufficient information to designate or describe documents desired or to allege that they are in the control f an adversary, he may take depositions under Rule 26 or proceed by interrogatories under Rule 33 to acquire the necessary information as to the existence, description custody and location of such documents in order that he can properly designate them. * * *'

A blanket request for all written statements, all memoranda and all other documents, is not sufficient because it lacks specificity and is too sweeping and undetailed to comply with requirements as to designation. No court could determine from such a blanket request the question of privilege or relevancy of the matters sought for discovery. The better practice is, as above suggested, for the plaintiff to ascertain, by oral or written examination, the identity of the papers he seeks and then show good cause for the production of these specified documents.

We recognize that situations may exist where the records are voluminous and it may be impossible to specifically designate each document sought for discovery, and in such instances the trial, court, in the exercise of its discretion, could properly treat designation by categories as sufficient, so long as the category itself is sufficiently defined. United States v. United Shoe Machinery Corp., D.C.Mass. 1948, 76 F.Supp. 315; United States v. United States Alkali Export Ass'n, D.C.N.Y.1946, 7 F.R.D. 256; Levin v. Birrell, D.C., 13 F.R.D. 341.

Statements of Witnesses

Petitioner was ordered to produce all written statements obtained from witnesses material to the issues raised by the pleadings. Petitioner urges that statements of witnesses obtained by the attorney in anticipation of litigation or in preparation for trial are the work product of the attorney and are immune from discovery. We do not agree with this contention. We are of the opinion that a liberal construction of Rule 34 requires all statements of witnesses, whether obtained by the attorney or any other person, be produced for inspection and copy upon a showing of good cause as hereinafter defined. In the Hickman case, supra, the court considered the narrow question of statements of witnesses obtained by an attorney, and determined such statements were not immune from discovery as the work product of the attorney, and were not within the common law attorney-client privilege.

In Alltmont v. United States, 3 Cir., 177 F.2d 971, 976, the court dealt with the broader question of all statements of prospective witnesses which a party has obtained for his trial use and stated:

'* * * For since, as the Court held [In the Hickman case], statements of prospective witnesses obtained by a lawyer are not protected by the historic privilege inherent in the lawyer-client relationship and are only protected against disclosure if the adverse party cannot show good cause for their production, we can see no logical basis for making any distinction between statements of witnesses secured by a party's trial counsel personally in preparation for trial and those obtained by others for the use of the party's trial counsel. In each case the statements are obtained in preparation for litigation and ultimately find their way into trial counsel's files for his use in representing his client at the trial. The...