Frank C. Sparks Co. v. Huber Baking Co.

• Decision Date: 16 February 1955
• Citation: 114 A.2d 657,49 Del. 267,10 Terry 267
• Parties: , 49 Del. 267 FRANK C. SPARKS COMPANY, Plaintiff, v. HUBER BAKING COMPANY, a Delaware Corporation, Defendant and Counter-claimant, FRANK C. SPARKS COMPANY et al., Third Party Defendants. HUBER BAKING COMPANY, a Delaware corporation, Plaintiff, v. FRANK C. SPARKS COMPANY, et al., Defendants.
• Court: Delaware Superior Court

Page 657

114 A.2d 657

10 Terry 267, 49 Del. 267

FRANK C. SPARKS COMPANY, Plaintiff, v. HUBER BAKING COMPANY, a Delaware Corporation, Defendant and Counter-claimant, FRANK C. SPARKS COMPANY et al., Third Party Defendants.

HUBER BAKING COMPANY, a Delaware corporation, Plaintiff, v. FRANK C. SPARKS COMPANY, et al., Defendants.

Superior Court of Delaware, New Castle County.

Feb. 16, 1955.

Stewart Lynch, Wilmington, for Frank C. Sparks Co.

William Pricket, Wilmington, for Huber Baking Co.

LAYTON, Judge.

On April 29, 1949, while Sparks was laying a concrete floor on the second story of the Huber Bakery, there was a collapse, a beam fell and part of the concrete floor fell. Several workmen were injured. Thereafter, Sparks laid a new concrete floor which, according to Huber, was unsatisfactory. A number of suits were filed, some for injuries to the workmen and these because of the alleged negligent manner in which the floor was laid.

The concrete with which the floor in dispute was laid was furnished by the Warner Co. This corporation tests and records the results thereof of all concrete which it sells. For the purpose of making such tests it has, for many years, retained the services of Delaware Testing Laboratories operated by one Frank Pritchett. Pritchett apparently keeps at least one fulltime employee at the Warner plant whose duty it is to test and check all materials, mixtures, etc., going into the concrete mix and to record the results. Upon complaint as to faulty concrete, Pritchett customarily makes tests and certifies his conclusions both to Warner and to the customer. It is admitted that Warner uses Pritchett's services among other things to further its customer relations.

After Sparks had laid the floor in question, Huber complained that it was wearing badly. Sparks notified Warner which caused Pritchett to investigate, test and report on the floor. In so doing, Pritchett visited Huber on several occasions and also conferred with representatives of Sparks. He filed a detailed report of his investigations both with Warner and Sparks.

Thereafter, the prosecution of these suits apparently gave way to preparation for the trial of the personal injury actions which involved a great deal more money. These latter actions having been settled last year, preparation for the trial of these suits commenced. In November or December, 1954, there was a conference between Sparks, Warner and Pritchett, looking to the preparation for trial of these suits where it was discovered for the first time that Pritchett had been specially retained by Huber as an expert to aid in the preparation of its defense and had, in fact, made further tests upon the concrete floor and submitted a written report to Huber's attorney.

Sparks has moved for an inspection of this report and Huber resists upon the grounds that (1) the report in question is within the privilege defined in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, as being a part of the work product of an expert aiding an attorney in the preparation of his case, (2) there is an attorney-client privilege between Huber's attorney and Pritchett which cannot be invaded.

In Scourtes v. Fred W. Albrecht Grocery Co., D.C., 15 F.R.D. 55, 58, the Court defines the 'work product' of an attorney as follows:

'The 'work product' of an attorney consists only of impressions, observations and opinions which he has recorded and transferred to his file. Hickman v. Taylor, supra. It is the product of his investigation of a case in preparation for trial, in his capacity as attorney representing a client. It make no difference whether he functions autonomously or in the employ of a corporation in its legal department, so long as he is actually engaged in trial preparation. Likewise, the impressions, observations and opinions of a person hired by him and acting under his supervision and direction in the investigation of a case and its preparation for trial are part of his 'work product'. * * * The same is true of knowledge gained by an attorney through the efforts of an engineer or other expert whom he has employed to investigate matters of a technical or scientific nature.'

Except on rare occasions, an attorney's work product is exempt from discovery, not because it falls within the so-called attorney-client privilege, but upon the theory that the private files and records of an attorney should be preserved from invasion by opposing counsel. In the rare case where it can be demonstrated that great hardship would otherwise result, a Court will go so far as to compel production of an attorney's files. ¹ We are here concerned with a report of an expert made at the request of an attorney in order to aid him in the preparation of this litigation. The theory of exemption here has been variously stated as being within the so-called 'work product' rule or because it would be inequitable to allow an opponent to 'pick the brains' of an expert hired at someone else's expense where other experts are readily available. Lewis v. United Air Lines Transport Corp., D.C., 32 F.Supp. 21, 23.

It would be very simple to grant the request for discovery here upon the theory of the obvious hardship which would result because, with the floor now covered with wood, Sparks has no other way of obtaining this information. ² But I prefer to confine my reasons to the peculiar relationship existing between the expert witness and the other parties interested in this litigation for the reason that this situation is common to both of the grounds upon which Huber resists this application for discovery.

It is my feeling that the rule which precludes discovery of a report of an expert made at the request of an attorney must be interpreted in the light of the facts of each case. Here, if Pritchett had been completely independent and in no way connected with the parties to this litigation, then the request for discovery would have run afoul of the rule. But Pritchett was independent in name rather than in fact. Literally for years, though an independent contractor, he had been closely associated with Warner which supplied the concrete comprising the very floor in dispute. As such, he had an obligation not only to Warner but, since he was admittedly retained among other reasons to further customer relations, some obligation to Sparks. He had already tested the floor once and, in so doing, had conferences with both Huber and Sparks. He had already submitted one detailed report on the subject and given a copy to Sparks. It was at yet another conference bearing on this trial that it was...