Ford Motor Co. v. Havee, 60-279

• Decision Date: 06 October 1960
• Docket Number: No. 60-279,60-279
• Parties: FORD MOTOR COMPANY, a Delaware corporation, Petitioner, v. Kathryn C. HAVEE and Justin P. Havee, Respondents.
• Court: Florida District Court of Appeals

Page 572

123 So.2d 572

FORD MOTOR COMPANY, a Delaware corporation, Petitioner, v. Kathryn C. HAVEE and Justin P. Havee, Respondents.

No. 60-279.

District Court of Appeal of Florida, Third District.

Oct. 6, 1960.

Dixon, DeJarnette, Bradford, Williams, McKay & Kimbrell and Jajes A. Dixon, Jr., Miami, for petitioner.

Ross, Reinhardt & Preddy and Gilbert A. Haddad, So. Miami, for respondents.

PEARSON, Judge.

The defendant, Ford Motor Company, petitions for a writ of certiorari to be directed to the Circuit Court. The petition has as its object the reversal of that court's order requiring the defendant to produce a report of its expert given to the motor company upon the examination of a portion of plaintiff's car. We have assumed jurisdiction of the petition to decide the question pursuant to the exception set forth in Kauffman v. King, Fla.1956, 89 So.2d 24, 26:

'Common-law certiorari is a discretionary writ and ordinarily will not be issued by this court to review interlocutory orders in a suit at law, since such errors as are made may be corrected on appeal. It is only in exceptional cases, such as those where the lower court acts without or in excess of jurisdiction, or where the interlocutory order does not conform to the essential requirements of law and may reasonably cause material injury throughout the subsequent proceedings for which the remedy by appeal will be inadequate, that this court will exercise its discretionary power to issue the writ.'

The plaintiffs, Kathryn C. Havee and Justin P. Havee, filed separate suits against the Ford Motor Company for personal injuries arising out of the alleged failure of the steering mechanism on a 1957 Mercury sedan, manufactured by the defendant and sold to the plaintiff, Justin P. Havee. Their complaints alleged that they were proceeding down the road in the car when suddenly they found themselves in the ditch because the car would not steer. Among other things, they alleged that the accident occurred because of a defective tie rod which broke. The company disclaimed any knowledge of a defective tie rod and demanded strict proof, and it appears that upon deposition Mr. Havee admitted that he still had the tie rod and that he was keeping it for the day of trial.

Whereupon, the Ford Motor Company decided not to wait until the day of trial but to take advantage of the provisions of the Florida Rules of Civil Procedure for discovery. The trial judge required Mr. Havee to produce the tie rod for 'examination and chemical analysis'. For this purpose the motor company was allowed to have possession of the plaintiff's property for 30 days. Thereafter the motor company returned the auto part and Mr. Havee moved the court for an order requiring the defendant to furnish him with a copy of the report of examination. The judge entered an order requiring the production of the report.

The Ford Motor Company, as petitioner, urges that the trial court in the entry of the last mentioned order, acted without, or in excess of its jurisdiction, or that the order does not conform to the essential requirements of law. In essence, the basis of its petition is that to require the production of the report would not only work irreparable harm to the defendant, but would afford to the plaintiffs, benefit of the company counsel's preparation for trial and would thus deprive the defendant of the 'work product' of its attorney. The parties deem that it is essential to determine whether the motion to produce the tie rod for examination and chemical analysis was made pursuant to Rule 1.28 or Rule 1.29 of the Florida Rules of Civil Procedure, 30 F.S.A. It is pointed out that Rule 1.28 is essentially a rule under which the court may in its discretion require a party to produce evidentiary material for inspection; while on the other hand, Rule 1.29 provides for an examination of a party or his property. It will be noted upon a reading of the two rules that Rule 1.28 makes no provision for the furnishing of a copy of the results of the inspection to the opposite party. Rule 1.29(b)(1) specifically provides for a copy of a report of the examiner, if requested. The appellant analyzes the two rules and reaches a conclusion that the essential difference between them is that the latter rule applies to cases in which the court appoints an expert to make an examination. The appellee urges that the essential distinction is that Rule 1.29 applies to cases of compulsory examination rather than an inspection of the party or the party's property. In this connection, it should be noted that Rule 1.29 is broader in scope than Federal Rule of Civil Procedure 35, 28 U.S.C.A., which it follows, in that it provides not only for an examination of a party by a physician, but also provides for the examination of injured property and that the examination may be by 'a physician or other such qualified expert'.

It is a well-settled principle of our adversary procedure that discovery may not be used to secure private memoranda of an adverse party's counsel formed in the course of his legal duties. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451. This case was followed by the Supreme Court of Florida in Atlantic Coast Line R. Co. v. Allen, Fla.1949, 40 So.2d 115, which held that discovery may not be used to examine the 'work product' of the adverse party and it matters not whether the product is the creature of the party, his agent or his attorney.

It does not follow that the rule is without its exceptions. In Miami Transit Co. v. Hurns, Fla.1950, 46 So.2d 390, 391, it was held that circumstances might arise which would require an opposing counsel to allow examination of data and material which he had prepared, in response to a petition for discovery. The court then listed the following circumstances in which discovery would be permitted: '* * * (1) when witnesses are no longer available or can be reached only by great difficulty, (2) if it gives clues to relevant facts that cannot be secured otherwise, or (3) for purposes of impeachment.'

From this review of the matter, we have determined that the principle that a party will not be required to produce the work product of its attorneys and agents to an adversary is applicable in this case, whether the provision for discovery was made under Rule 1.28 or Rule 1.29, Florida Rules of Civil Procedure, 30 F.S.A. This is true because both Rule 1.28 and Rule 1.29 are subject to the underlying principles of discovery above discussed. Thus viewed, Rule 1.29 provides for the furnishing of a copy of a report when the examination is performed by an expert designated by the court and to that extent the expert is an officer of the court.

We turn then to the record in the instant case, to determine whether the report of the condition of the tie rod is a 'work product'. ¹ We think it is obvious that it must be considered such whether the examination was made by an employee of the defendant company or by a special expert who was an agent of the company to make the particular investigation. It is posible that this result could have been avoided by the court designating the expert and prescribing the conditions and scope of the examination, but the court did not do so. ²

We turn next to the possibility that the report might fall within one of the exceptions to the above-mentioned rule that a party will not be required to furnish its own work product. There is nothing in the record of this case by way of recitation in the motion for the production of the report, in the order of the trial judge requiring the...