Ford Motor Co. v. Hanley

• Decision Date: 30 January 1973
• Docket Number: No. 47639,No. 1,47639,1
• Citation: Ford Motor Co. v. Hanley, 196 S.E.2d 454, 128 Ga.App. 311 (Ga. App. 1973)
• Parties: FORD MOTOR COMPANY v. Mrs. Rozell HANLEY et al
• Court: Georgia Court of Appeals

Page 454

196 S.E.2d 454

128 Ga.App. 311

FORD MOTOR COMPANY v.Mrs. Rozell HANLEY et al.

No. 47639.

Court of Appeals of Georgia, Division No. 1.

Jan. 30, 1973.

Rehearing Denied Feb. 28, 1973.

Hansell, Post, Brandon & Dorsey, Hugh E. Wright, E. Freeman Leverett, Atlanta, for appellant.

Robinson, Buice, Harben & Strickland, Sam S. Harben, Jr., Gainesville, Davis & Davidson, Jack S. Davidson, Jefferson, James L. Brooks, Commerce, for appellees.Syllabus Opinion by the Court

STOLZ, Judge.

AppellantFord Motor Company(Ford) cross-appeals from certain rulings of the trial judge during the trial, referred to in Hanley v. Ford Motor Co., 128 Ga.App. --, 196 S.E.2d 451.

Enumerated errors 1 and 2 complain of the trial judge's failure to order the instant and immediate production of a statement taken from the young lady passenger in defendant Pritchett's automobile at the time of the accident and who was a witness in the case for defendant Pritchett.

A brief chronology will assist in reaching a full appreciation of the situation that confronts us.The accident in question occurred on February 6, 1970, as a result of which, the witness, Miss Harris (now Mrs. Stewart) sustained multiple injuries, including burns on both hands.Written statements signed by the witness, were taken on March 31 and May 18, 1970.The March 31st statement contained the following: 'Someone came to the hospital and took a signed statement from me the second week I was there.I had had several shots that day and under heavy sedatives and I know now I must have said things that I did not know were right.I know now that Danny (defendant Pritchett) was not at fault in any way.'The plaintiff filed suit against Pritchett and Ford on November 16, 1970.Pritchett filed his cross-claim against Ford on December 21, 1970.After the initial pleadings were filed, the parties undertook extensive pretrial discovery.On September 27, 1971, the trial judge issued an order on 'Motions of DefendantFord Motor Company Relating to Discovery,' the pertinent portions of which are as follows: '(1) The motion of the defendantFord Motor Company, filed September 3, 1971, to compel plaintiff and defendant Pritchett, and the insurance companies providing defense for defendant Pritchett to produce and permit defendantFord Motor Company to inspect and copy a statement of witness Brenda Gail Stewart, formerly Brenda Gail Harris, which statement was taken of said witness while she was in the hospital relatively soon after the occurrence sued upon, is hereby denied, counsel for plaintiff and counsel for defendant Pritchett, . . . (and counsel for the various insurance carriers herein involved), having all stated to the Court that they had no such statement in their possession, nor had any knowledge of any such statement. . . .If any party or counsel of record should obtain or learn of any such statement hereafter, they are directed to furnish copy to or notify, as the case may be, counsel for defendantFord Motor Company as soon as practicable thereafter.'(Emphasis supplied.)The case came on for trial in late January, 1972.Defendant Pritchett's witness, Mrs. Stewart, formerly Miss Harris, while on cross-examination by counsel for Ford, testified that she gave a statement as to what happened in this accident while in the hospital, prior to giving the statement dated March 31, 1970; that she did not get a copy of it; that she knew who took the statement; that James Brooks(co-counsel for plaintiff) was the person to whom she gave the statement; and that she didn't sign the statement because she couldn't sign it, but that they had people there with them.The plaintiff's co-counsel, Mr. Brooks, stated that the statement was not signed and that 'this mainly was simply I was writing down the conversation, is what it amounts to.'

Ford made a motion to compel the immediate production of the statement.The trial judge overruled the motion, holding that the statement constituted the 'work product' of the attorney.

1.The leading cases on 'work product' are Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451andAtlantic C.L.R. Co. v. Daugherty, 111 Ga.App. 144, 141 S.E.2d 112.In Hickman, the U.S. Supreme Court declined to require discovery of oral and written statements of witnesses whose identity was well known, private memoranda and personal recollection of adverse counsel.In so doing, the court noted, '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. . . .We do not mean to say that all written materials obtained or prepared by an adversary's counsel with an eye toward litigation are necessarily free from discovery in all cases.Where relevant and non-privileged facts remain hidden in an attorney's file and where production of those facts is essential to the preparation of one's case, discovery may properly be had.Such written statements and documents might, under certain circumstances, be admissible in evidence or give clues as to the existence or location of relevant facts.Or they might be useful for purposes of impeachment or corroboration.'329 U.S. pp. 508, 511, 67 S.Ct. p. 392.(Emphasis supplied.)

In Daugherty, this court, in a full bench opinion, pointed out the confusion that has arisen in the decisions of the state and federal courts due to the interchangeable use of the terms 'privileged' or 'work product,''good cause' and 'necessity or justification,' and discussed each fully.Obviously, the statement sought to be discovered here was not privileged, but what about 'work product?'In Daugherty, 111 Ga.App. on p. 154, 141 S.E.2d on p. 119, this court, in discussing 'work product,' observed that the purpose of that doctrine is 'to protect the attorney's preparation for trial from discovery.'The court went on, saying, 'These statements in a manner of speaking and in the broadest sense may be in anticipation that some litigation may ensue or that it may become necessary to prepare for the defense of a suit, but they are not the 'work product' of the lawyer.'Both Hickman and Daugherty point out that it is not necessary for a statement to be taken by an attorney for it to be 'work product' and that all statements taken by attorneys are not work product.

It is our opinion that, under the decisions in Hickman and Daugherty, the statement was not part of the attorney's 'work product' and was discoverable.However, even if this is not the correct view, the status of our present discovery statutes removes any possibility of doubt.Discovery may be had of 'any matter, not privileged, which is relevant to the subject matter involved in the (present) action.'Code Ann. § 81A-126(b)(1)(Ga.L.1966, pp. 609, 635;1967, pp. 226, 233;1972, p. 510).Discovery may be obtained of documents 'prepared in anticipation of litigation or for trial' by a party's attorney upon a showing of a 'substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.'Code Ann. § 81A-126(b)(3).Here, Ford's counsel had exhausted every possible procedure to obtain the discovery of the statement in question.The trial judge had been assured by all parties and their counsel that they were unaware of the existence of the statement and ordered all parties to produce it to Ford should they become aware of its existence or in possession of it.This was correct and proper.The subsequent...