Fireman's Fund Ins. Co. v. McAlpine

• Decision Date: 17 August 1978
• Docket Number: Nos. 76-195-M,s. 76-195-M
• Citation: 120 R.I. 744,391 A.2d 84
• Parties: FIREMAN'S FUND INSURANCE COMPANY v. Lola-Jane McALPINE, Administratrix. Jay K. ROGERS v. Alfred C. TOEGEMANN et al. William J. BOYES, Jr., p.p.a. William J. Boyes v. UNITED TRUCK AND BUS SERVICE CO. et al. William J. BOYES, Jr., p.p.a. William J. Boyes v. Helen I. MARTIN et al. P., 76-226-M.P., 77-239-M.P. and 77-248-M.P.
• Court: Rhode Island Supreme Court

Page 84

391 A.2d 84

120 R.I. 744

FIREMAN'S FUND INSURANCE COMPANY v. Lola-Jane McALPINE, Administratrix.

Jay K. ROGERS v. Alfred C. TOEGEMANN et al.

William J. BOYES, Jr., p.p.a. William J. Boyes v. UNITED TRUCK AND BUS SERVICE CO. et al.

William J. BOYES, Jr., p.p.a. William J. Boyes v. Helen I. MARTIN et al.

Nos. 76-195-M.P., 76-226-M.P., 77-239-M.P. and 77-248-M.P.

Supreme Court of Rhode Island.

Aug. 17, 1978.

[120 R.I. 761] Higgins, Cavanagh & Cooney, John T. Walsh, Jr., Strauss, Factor, Chernick & Hillman, William C. Hillman, Stephen B. Lang, Providence, Revens, DeLuca & Najarian, John C. Revens, Jr., Warwick, for plaintiffs.

Moore, Virgadamo, Boyle & Lynch, Ltd., Francis J. Boyle, Joseph Palumbo, Jr., Newport, Hanson, Curran, Bowen & Parks, William A. Curran, Joseph A. Kelly, Dennis J. McCarten, Martin K. Donovan, Providence, for defendants.

OPINION

KELLEHER, Justice.

In each of the above proceedings we have issued our common law writ of certiorari so that we may discuss the extent to which a litigant is immunized from discovery procedures by Super.R.Civ.P. 26(b). Each petition seeks review of an interlocutory order of the Superior Court granting a motion to compel the production of various materials in the possession of the petitioner. Three of the petitions originated in negligence actions and raise a common issue: whether written statements of witnesses taken by the petitioners' insurers are subject to discovery under Super.R.Civ.P. 34. The fourth petition relates to a probate appeal now pending in the Superior Court and concerns a demand for information, some of which involves communications between the petitioner and its counsel.

Before proceeding to examine the individual petitions, a brief review of the pertinent rules is in order. Our starting point is Rule 34, which provides the mechanism by which a party to a civil action may seek the production, for the purposes of inspection or copying, of writings, documents, photographs, and other data compilations that are in the possession of his adversary. The right to secure such material is not unlimited but is expressly made subject to the restrictions delineated in Rule 26(b).

This latter proviso delineates different limitations upon a party's access to matters possessed by another party. Rule 26(b)(1) states that discovery will be allowed as to "any matter, not privileged, which is relevant to the subject matter involved in the pending action * * * ." Thus, discoverable matter must be both relevant and not privileged. In this context, the term "privileged" denotes the recognized exclusions found in the law of evidence, such as those related to the attorney-client or the husband-wife relationship. 1 Kent, R.I.Civ.Prac. § 26.11 at 220 (1969). ¹

Rule 26(b)(2) sets forth three additional limitations upon the scope of discovery under Rule 34. Unless a party can demonstrate "injustice or undue hardship," he will be precluded from obtaining a "writing obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent in anticipation of litigation and in preparation for trial * * * ." Furthermore, absolute immunity from discovery is provided for a "writing which reflects an attorney's mental impressions, conclusions, opinions, or legal theories * * * ." These restrictions represent a somewhat modified version of the work-product doctrine first enunciated in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). The final limitation found in Rule 26(b)(2) is that "conclusions of an expert engaged in anticipation of litigation and in preparation for trial" are immune from discovery unless the court orders production to avoid injustice or undue hardship. Town of North Kingstown v. Ashley, R.I., 374 A.2d 1033 (1977).

Although our Rule 26(b)(2) protects writings made "in anticipation of litigation and in preparation for trial," we do not believe that the drafters ever intended the rule to be construed so that a litigant's immunity from discovery would be lost unless he could show that the documents in his possession were obtained not only in anticipation of litigation but also as part of his trial preparation. If the rule is construed literally, a party who without any warning suddenly finds himself immersed in litigation and then seeks the help of an expert could be forced to divulge the expert's report to his adversary because, even though the report was made in preparation for trial, its formulation could not be said to be a pre-litigation maneuver. In the past, when called upon to determine whether we should substitute the disjunctive "or" for the conjunctive "and," this court has emphasized that it would not allow itself to be blindly enslaved to a literal reading of a statute or an ordinance when to do so would defeat or frustrate the intendment of the Legislature. Town of Scituate v. O'Rourke, 103 R.I. 499, 239 A.2d 176 (1968). In the Scituate case we read "and" as "or" and we shall do the same here. See 1 Kent, R.I.Civ.Prac. § 26.14 at 225 n.47 (1969). We think it quite obvious that the protective ambit of Rule 26(b)(2) was not meant to be restricted to material that had been prepared subsequent to the initiation of litigation. On the contrary, in our opinion, the rule was meant to be applied to materials gathered when litigation is merely a contingency. Thus, the rule's privilege may be invoked for materials prepared either in anticipation of litigation or for trial.

With the above principles as a backdrop, we can proceed to our discussion of their application to the pertinent facts of the petitions. We begin our analysis with the three civil actions.

Rogers v. Toegemann et al., No. 76-226-M.P., is a personal injury action arising out of a five-car chain collision that occurred on November 15, 1974. Rogers was the operator of the second vehicle in a line of vehicles that were stopped in Warwick in the southbound speed lane of Interstate Route 95. While he was stopped, Rogers alleges that he was hit by the car in back of him driven by Alan P. Durand. The impact caused him to tap the car in front of him driven by Susan A. Keegan. Within seconds, Rogers' vehicle was hit once again from the rear. It appears that two other vehicles had collided with the Durand car, forcing it into the Rogers automobile. The car immediately behind Durand was driven by Alfred C. Toegemann and owned by Amica Services, Inc. (Amica). The last vehicle in the chain was driven by Edward W. Graziano.

Rogers filed suit in the Superior Court on July 3, 1975 against Durand, Toegemann, Amica, and Graziano. Through interrogatories propounded to Toegemann and Amica, Rogers learned that shortly after the collision an investigator for their insurer had investigated the mishap and taken written statements from Durand, Graziano, and Keegan. These statements, which were obtained in late 1974 and early 1975, were in the possession of Toegemann and Amica's attorney at the time suit was commenced. Rogers thereafter served upon Toegemann and Amica a request for the production of 13 items, including the three statements secured by the insurance investigator. Objection was raised to all matters contained in Rogers' request, and Rogers then filed the appropriate motion to compel production under Super.R.Civ.P. 37. After a hearing, the trial justice sustained Toegemann's and Amica's objection to the material Rogers sought access to except for four items, three of which were the statements obtained by the investigator. Toegemann and Amica's petition challenges the order directing the production of the statements.

The next two petitions arose out of an incident that occurred on October 31, 1974 in Warwick. William J. Boyes, Jr., was returning from school on a bus owned by United Truck & Bus Service Co. (United). Near the Apponaug School on Centerville Road, the bus pulled to the curb, came to a stop, and discharged William, who then proceeded to pass in front of the bus to cross the road. When he stepped from the side of the bus, he was struck by a vehicle driven by Helen I. Martin. On July 9, 1976, William's father commenced a suit in his own behalf and in behalf of his son against United and Martin. United is charged with being negligent in that (1) it failed to properly maintain the school bus and (2) its driver had neglected to inspect the flashing lights, failed to activate the lights when discharging William, and had left William at an unscheduled stop near a dangerous intersection. Martin's negligence is based upon her alleged noncompliance with the terms of G.L.1956 (1968 Reenactment) § 31-20-12 (stopping for a school bus whose red lights are flashing) and her failure to maintain proper control of her vehicle.

Once Mr. Boyes received the replies to his interrogatories, he discovered that shortly after his son was injured, investigators for United's and Martin's insurers had taken written statements from several witnesses, and these statements were in the possession of defendants' attorneys. Subsequently, United and Martin were ordered to produce the statements, and we then issued our writ.

At the outset we can quickly dispose of any claim that since the copies of the witnesses' statements were in the possession of attorneys for petitioners, they were protected from disclosure by reason of the attorney-client privilege incorporated into Rule 26(b)(1). A document that is subject to discovery in the hands of a party or his agent does not become immunized from discovery under Rule 26(b)(1) simply by delivery to his lawyer. Balistrieri v. O'Farrell, 57 F.R.D. 567 (E.D.Wis.1972); 1 Kent, R.I.Civ.Prac. § 26.11 at 221 (1969); 8 Wright and Miller, Federal Practice and Procedure § 2017 at 138-39 (1970).

The dispositive issue in Toegemann's, Amica's, United's, and Martin's petitions is whether the witnesses' statements come within the protective pale of Rule 26(b)(2) and especially that part of the rule providing for the qualified privilege of ...