Edgar v. Finley

• Citation: 312 F.2d 533
• Decision Date: 11 February 1963
• Docket Number: No. 17068.,17068.
• Parties: Maizie Boling EDGAR, Appellant, v. Deborah FINLEY, a minor, by Edward Finley, her next friend, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

312 F.2d 533 (1963)

Maizie Boling EDGAR, Appellant, v. Deborah FINLEY, a minor, by Edward Finley, her next friend, Appellee.

No. 17068.

United States Court of Appeals Eighth Circuit.

January 17, 1963.

Rehearing Denied February 11, 1963.

Samuel Richeson, of Dearing, Richeson & Weier, Hillsboro, Mo., for appellant.

William H. Corcoran, of Walsh, Hamilton & Corcoran, St. Louis, Mo., for appellee.

Before SANBORN, VAN OOSTERHOUT and MATTHES, Circuit Judges.

MATTHES, Circuit Judge.

This diversity case, removed to the United States District Court, arose from an automobile collision in which plaintiff, Deborah Finley, a minor, was injured while riding as a passenger in an automobile that was being operated by her mother, Joan Finley. A jury awarded plaintiff $15,000 as damages, and from the judgment entered on the verdict, defendant has appealed.

In issue are: (1) whether the court committed prejudicial error in sustaining objections of plaintiff to interrogatories propounded by defendant; and (2) whether the court abused its discretion in denying defendant's motion for a new trial on the ground of newly discovered evidence. A brief resume of the proceedings which are focused upon the events giving rise to the appeal will suffice.

On September 30, 1960, defendant propounded interrogatories to plaintiff, requesting the identity and location of persons known to plaintiff or to anyone acting for her, "having knowledge of relevant facts with respect to the accident collision out of which the pending litigation arose."¹ In objections to the interrogatories, plaintiff admitted knowledge of the name and address of "a person who arrived at the scene of the collision in question shortly after its occurrence" but claimed the information so possessed was privileged because it was received by plaintiff's attorney from another attorney "under the condition and promise that he plaintiff's attorney would not disclose the same to the Defendant herein or her attorneys."

On March 7, 1961, the court sustained plaintiff's objections to the interrogatories, citing as authority for its action O'Brien v. Equitable Life Assurance Society of United States, D.C., 13 F.R.D. 475 (1953), and Pacific Intermountain Express Co. v. Union Pacific Railroad Co., D.C., 10 F.R.D. 61 (1950).

The critical issue in controversy at the trial, commenced on March 6, 1961, was whether the Finley automobile, proceeding southwardly, was to the west (right) of the center line of the four lane concrete highway at the time of the collision with defendant's automobile. Plaintiff's mother testified that the collision occurred on her side of the highway, whereas defendant testified that she was to the right of the center line as she was proceeding northwardly on the highway, and that plaintiff's automobile crossed the center line and then collided with her automobile. Since there was other evidence tending to corroborate defendant's version of the accident, the question of defendant's fault or liability was a close one and could have been resolved in favor of either party.

Issue No. 1 — the court's action in sustaining objections to the interrogatories on the claimed basis of privilege may be disposed of without extended discussion.

While the trial court is vested with reasonable discretion in determining whether discovery is to be allowed, Wray M. Scott Company v. Daigle, 8 Cir., 309 F.2d 105, 110 (1962); Bell v. Swift & Company, 5 Cir., 283 F.2d 407 (1960), it is no longer open to debate that the discovery rules should be given a broad, liberal interpretation. The Supreme Court made this clear in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947) in this language:

"We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of `fishing expedition\' serve to preclude a party from inquiring into the facts underlying his opponent\'s case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation." 329 U.S. at 507, 67 S.Ct. 392.

There are, of course, limitations upon the right to obtain evidence and information through the discovery processes. Rule 33, Fed.R.Civ.P., which authorizes the filing of interrogatories, provides in part that the "interrogatories may relate to any matters which can be inquired into under Rule 26(b) * * *" and Rule 26(b) expressly provides that "unless otherwise ordered by the court as provided by Rule 30(b) or (d), the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action * * * including * * the identity and location of persons having knowledge of relevant facts." What is or is not privileged matter within the meaning of the rules had been the subject of considerable concern by the courts until clarified in the Hickman case, supra. There, in considering whether statements taken by an attorney in the investigation of the sinking of a tug fell within the category of privileged matter, the court stated:

"But discovery, like all matters of procedure, has ultimate and necessary boundaries. As indicated by Rules 30(b) and (d) and 31(d), limitations inevitably arise when it can be shown that the examination is being conducted in bad faith or in such a manner as to annoy, embarrass or oppress the person subject to the inquiry. And as Rule 26(b) provides, further limitations come into existence when the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege.

"We also agree that the memoranda, statements and mental impressions in issue in this case fall outside the scope of the attorney-client privilege and hence are not protected from discovery on that basis. It is unnecessary here to delineate the content and scope of that privilege as recognized in the federal courts. For present purposes, it suffices to note that the protective cloak of this privilege does not extend to information which an attorney secures from a witness while acting for his client in anticipation of litigation." 329 U.S. 507-508, 67 S.Ct. 392.

For an exhaustive treatment of privilege as related to the discovery process, including many cases decided subsequent to Hickman, see 4 Moore, Federal Practice, § 26.19 et seq., pp. 1075-1150 (2d ed. 1950). Of the numerous cases we have examined, none of them furnishes a sufficient basis for sustaining the trial court's action in this case, whereas the following, among others that could be cited, satisfy us that the information which plaintiff refused to divulge was not privileged or immune to discovery for any other valid reason. Bell v. Swift & Company, supra, 283 F.2d 407; Stonybrook Tenants Ass'n Inc. v. Alpert, D. Conn., 29 F.R.D. 165 (1961); McNeice v. Oil Carriers Joint Venture, E.D.Pa., 22 F.R.D. 14 (1958); Knab v. Pennsylvania R. Co., W.D.Pa., 12 F.R.D. 106 (1952); Floe v. Plowden, E.D.S.C., 10 F.R.D. 504 (1950). If the claim of privilege may be successfully invoked, as it was here, on the basis that the names of witnesses were furnished to an attorney representing the party to whom the interrogatories are directed, in confidence, the discovery provisions would, to a marked degree, be effectively nullified.

Without further discussion, we hold that defendant was, as a matter of right, entitled to the information sought through the discovery procedure and that the court abused its discretion in sustaining the objections to the interrogatories.

Plaintiff makes no serious attempt in this court to sustain the court's action, rather the argument is advanced that defendant was not prejudiced because of the court's ruling on the interrogatories and that at best the error should be regarded as harmless.

Agreeing that the decisive question in this controversy relates to whether the court's error was prejudicial to defendant, we feel it necessary to briefly state additional facts pertinent to this issue. Defendant filed an after-trial motion for judgment or in the alternative for a new trial, the latter premised partially upon the court's action in sustaining plaintiff's objection to interrogatories and partially upon the basis of newly discovered evidence. The motion for new trial was supported by affidavit of defendant's counsel which alleged that he learned from an insurance adjustor for the first time on the morning of the trial and immediately prior to its commencement, that the adjustor had the names and addresses of three eyewitnesses to the collision who had seen the car in which plaintiff was riding go out of control, cross the center line, and collide with defendant's automobile which was on the proper side of the highway. The adjustor was employed by an insurance company that insured an automobile that was struck by the automobile in which plaintiff was riding after its collision with defendant's vehicle. The affidavit further alleged that the adjustor refused to comply with defendant's counsel's request for the names and addresses of the witnesses. Plaintiff has never denied that she had the names and addresses of these witnesses at the time she refused to answer defendant's interrogatories, and, indeed, the record furnishes a sufficient basis for us to infer that plaintiff possessed such information.

After the trial, defendant caused a subpoena duces tecum to be issued directing the adjustor to appear at a hearing on the motion for new trial on March 27, 1961, and to divulge at that time the names and addresses of the three eyewitnesses. At the hearing, the adjustor appeared with personal counsel, filed a motion to quash the subpoena duces tecum, and, along with plaintiff's counsel, objected to interrogation concerning the three witnesses. The court postponed ruling upon the motion and the objection pending the filing of memoranda by the parties and further analysis by the court. Six months later, on...