Ellison v. Gray
| Decision Date | 30 April 1985 |
| Docket Number | No. 62083,62083 |
| Citation | 702 P.2d 360,1985 OK 35 |
| Parties | Clark ELLISON and M.P. Appleby, Jr., Petitioners, v. Honorable Karl GRAY, Judge of the District Court of Oklahoma County, Respondent. |
| Court | Oklahoma Supreme Court |
George S. Corbyn, Jr., Ryan, Holloman, Corbyn & Geister, Oklahoma City, for petitioners.
William G. Paul and Anton J. Rupert, Crowe & Dunlevy, Oklahoma City, for respondent.
The determinative issue presented is whether the Oklahoma Discovery Code, 12 O.S. 1982 Supp. § 3203(B)(2) 1 precludes discovery of an attorney's ordinary or opinion work product in an action for malicious prosecution if the defense of good faith reliance on advice of counsel is raised. We find that under the circumstances presented, the statute is not an absolute bar to discovery.
On March 22, 1981, the petitioners, Clark Ellison and M.P. Appleby, Jr., attended an oil and gas lease auction, conducted by the Bureau of Indian Affairs. The respondent, An-Son, was present at the auction, and it was the successful high bidder on a 134-acre tract in Caddo County, Oklahoma. However, An-Son was not awarded the lease because private negotiations were conducted between the petitioners and the leasehold owners who, on April 3, 1981, executed a lease for $2,200,000.00.
On April 15, 1981, An-Son, et al, filed an action in the federal district court seeking cancellation of the petitioners' oil and gas lease. An-Son also sought injunctive relief to prevent assignment of the lease and to prohibit its development. On November 10, 1981, the case was dismissed for An-Son's failure to exhaust its administrative remedies. An-Son filed a motion to alter judgment on November 2, 1981, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure 2 in an attempt to reverse the court's earlier ruling of dismissal. The motion to alter judgment was denied on January 2, 1981 ----- The respondents did not appeal.
On March 30, 1982, petitioners brought suit for malicious prosecution in the district court of Oklahoma County to recover for damages allegedly caused by the federal litigation. The petitioners asserted that the pending federal action clouded their title to the lease, and that adjacent drilling condemned the leasehold. In answer to the action for malicious prosecution, the respondents raised the defense of good faith reliance on advice of counsel in filing the federal action. To prepare for trial, the petitioners moved for production of all the documents in the possession of the attorneys for the respondents concerning the federal litigation. The respondents voluntarily produced a portion of attorney-client documents from March 30, 1981 until November 10, 1981, the date of dismissal of the federal action. The respondents refused to produce any documents from the date of dismissal until the time to appeal had run.
The petitioners filed a motion to compel unlimited production of documents including the client files, timesheets, invoices, calendars, correspondence, telephone and telex records, and all other documents normally classified as ordinary work product. The motion to compel production of documents was denied. The petitioners urge this Court to assume original jurisdiction, and to grant a writ of mandamus ordering discovery without limitation including some materials which could be classified as opinion work product.
The extraordinary relief of a writ of mandamus or prohibition is available under proper circumstances to order or prohibit the production of evidence prior to trial. However, before appropriate relief may be granted, it must be shown that the trial court exceeded its authority or discretion in ordering or denying pretrial discovery. 3 The petitioners assert that they are entitled to compel discovery because the defense of good faith reliance on advice of counsel places the attorney's work product in issue; and, to prepare properly to depose the respondents' attorneys, and to prevent undue hardship in preparing for trial, full discovery must be permitted.
During the course of a particular representation, the attorney draws from various mental impressions consisting of conclusions, legal theories, and opinions, evaluations of strength and weakness, and inferences drawn from interviews of witnesses. The sum total of these impressions, when reduced to writing, is the attorney's work product. Only the distilled product which is communicated to the client, or any communication received by the client from counsel which is intermixed with work product, is discoverable. Ordinary work product consists of factual information garnered by counsel acting in a professional capacity in anticipation of litigation. It includes facts gathered from the parties and witnesses, and materials discovered through investigations of counsel or his/her agents. Although ordinary work product is cloaked with a qualified immunity, it may be discovered upon a showing of the inability to secure the substantial equivalent of the materials without undue hardship. 4 The opinion work product area is carved out to protect the right of counsel to privacy in the analysis and preparation of the client's case. 5 Opinion work product includes the lawyer's trial strategies, theories, and inferences drawn from the research and investigative efforts of counsel. Historically, the thoughts of an attorney have been free from invasion, and the impressions, theories, trial tactics, and opinions of counsel have been sheltered from disclosure. Opinion work product enjoys a virtual immunity from discovery, and it may be discovered only under extraordinary circumstances. 6
Although the two are closely related, an attorney's work product is not synonymous with the attorney-client privilege. The work product rule remains closely identified with the attorney-client privilege because work product represents efforts expended by the attorney during the course of the professional relationship. The attorney client privilege belongs to the client and must be invoked by the client. The attorney's work product exemption may be claimed by the attorney and not by the client; information which is not protected from discovery by the attorney-client privilege may nonetheless be exempt as work product.
One of the most perplexing discovery problems is the extent to which disclosure may be compelled. The Oklahoma Discovery Code, 12 O.S. 1982 Supp. § 3203(B)(2) tracks Rule 26(b)(3) of the Federal Rules of Civil Procedure. Even though we have not determined the degree of protection to be afforded attorney work product under § 3203(B)(2), the federal courts have addressed this troublesome issue under Rule 26(b)(3) 7 and its predecessor, Rule 34.
The work product doctrine was established in Hickman v. Taylor, 329 U.S. 495, 510-17, 67 S.Ct. 385, 393-96, 91 L.Ed. 451, 462-65 (1947), when the United States Supreme Court recognized that an attorney simultaneously must protect the rightful interest of his/her client, 8 while functioning with some degree of privacy free from unnecessary intrusions by adversary counsel. Without this protection, attorneys would hesitate to note their impressions because of the possibility of discovery by opposing counsel. In Hickman, the court found that some documents were covered by a qualified immunity from discovery. The Court held that while certain private memoranda, written statements of witnesses, and mental impressions or personal recollections, prepared or formed by an attorney in the course of professional duties for use in prosecuting the client's case and contained in the lawyer's files or mind were not protected by the attorney-client privilege, they were protected from discovery as the work product of the attorney. The Court held that in the absence of a strong showing of necessity, or a vigorous indication or claim that denial of discovery would unduly prejudice the preparation of the inquiring party's case, cause undue hardship, or result in injustice, discovery must be denied. Hickman, does not proscribe absolutely the discovery of opinion work product--it allows discovery only in rare instances.
The impact of Hickman has left the issue of strict immunity unanswered. The Federal Courts are split on opinion discovery: absolute immunity, 9 strict immunity with rare exceptions 10 and a balancing test 11 which holds that as the quantity of work product increases, the party requesting discovery must demonstrate a greater need for the materials.
In 1981, the United States Supreme Court again considered the question of immunity of opinion work product 12 in Upjohn Co. v. U.S., 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). Upjohn had been ordered by the trial court to produce questionnaires, memoranda and notes of interviews conducted between its attorneys and its employees. On appeal, the Supreme Court reversed the discovery order on the grounds that the magistrate had wrongfully applied the standard of substantial need and undue hardship articulated in Rule 26(b)(3). The Supreme Court held that discovery of opinion work product is not available merely by a showing of substantial need and an inability to obtain the equivalent discovery without undue hardship. Although the Court refused to find that materials which concern an attorney's opinion work product are never discoverable, it held that the moving party had not demonstrated a showing of necessity and unavailability strong enough to compel discovery. Neither Hickman or Upjohn grant complete immunity to an attorney's opinion work product. Hickman holds that only on rare occasions should discovery be compelled, and Upjohn holds that the party seeking discovery failed sufficiently to present its case.
In Commonwealth Edison Co. v. Allis-Chalmers Mfg. Co., 211 F.Supp. 736 (N.D.Ill.1962)...
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