Hawkins v. District Court In and For Fourth Judicial Dist.

Decision Date18 January 1982
Docket NumberNo. 81SA434,81SA434
Citation638 P.2d 1372
PartiesMichael Dennis HAWKINS, Petitioner, v. The DISTRICT COURT In and For the FOURTH JUDICIAL DISTRICT and the Honorable William E. Rhodes, one of the Judges thereof, Respondents.
CourtColorado Supreme Court

Henry B. Eastland, P. C., Colorado Springs, for petitioner.

Kane, Donley & Wills, Jerry Alan Donley, Colorado Springs, for respondents.

QUINN, Justice.

In this original proceeding we are asked to determine whether investigative reports and witnesses' statements compiled by an insurance adjuster in the course of investigating and attempting to settle a fire loss with an insured are discoverable in an action by the insured against an insurance company for failing to pay the fire loss claim. The respondent court held that such information was privileged and therefore not discoverable. The petitioner-insured, Michael Dennis Hawkins, thereafter commenced an original proceeding in this court. We issued a rule to show cause and now make the rule absolute.

I.

A brief recitation of the facts will place the issue in focus. The petitioner is an insured under a fire insurance policy on his home in Teller County, Colorado. The house and contents were destroyed by fire on February 16, 1981, and the petitioner filed a loss claim with MFA Mutual Insurance Company (MFA) for the full amount of coverage on the dwelling, the unscheduled personal property, and also for additional living expenses. 1 MFA assigned a claims adjuster to investigate the loss and to attempt to settle the claim. During the ensuing investigation the adjuster discussed with and took statements from various witnesses concerning the acquisition of insurance on the home, the origin of the fire, and the accuracy of the petitioner's proof of loss filed with the company. MFA refused to pay the petitioner's claim and the petitioner sued the company for breach of the insuring agreement, bad faith in refusing to pay his claim, and outrageous conduct.

In the course of the pending litigation the petitioner served interrogatories on MFA requesting, inter alia, the notes and investigative reports of the adjuster regarding his interviews with several named individuals as well as any statements taken from these persons. On the advice of counsel MFA refused to supply the requested information. The petitioner filed a motion to compel discovery under C.R.C.P. 37. The respondent court denied the petitioner's motion, ruling that the interrogatories sought "critical and privileged material between the insurance company and the insurance company's adjuster" and, therefore, such information was not discoverable. Although the respondent court did not particularize the nature of the privilege on which it relied in denying the petitioner's motion to compel, it is apparent that the only conceivable basis for the court's denial of discovery was the work product doctrine. We conclude that the respondent court abused its discretion in its summary denial of the petitioner's motion to compel discovery on the basis of the work product doctrine.

II.

At the outset we recognize that orders pertaining to pretrial discovery are interlocutory in nature and generally are not reviewable in an original proceeding. However, we have not been reluctant to exercise our original jurisdiction when a pretrial order departs significantly from the standards prescribed by the rules of civil procedure and places a party at an unwarranted disadvantage in litigating the merits of his case. See, e.g., Sanchez v. District Court, Colo., 624 P.2d 1314 (1981); Seymour v. District Court, 196 Colo. 102, 581 P.2d 302 (1978); Tyler v. District Court, 193 Colo. 31, 561 P.2d 1260 (1977). The respondent court's denial of the petitioner's motion to compel discovery will preclude the petitioner from obtaining information vital to his claims for relief and justifies our exercise of original jurisdiction under the circumstances present here.

The general contours of discovery are outlined in C.R.C.P. 26. Rule 26(b)(1) authorizes the discovery of "any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party...." The information sought need not be admissible at trial and is discoverable so long as it "appears reasonably calculated to lead to the discovery of admissible evidence." C.R.C.P. 26(b)(1). The purposes of pretrial discovery include the elimination of surprise at trial, the discovery of relevant evidence, the simplification of issues, and the promotion of expeditious settlement of cases. Cameron v. District Court, 193 Colo. 286, 565 P.2d 925 (1977). In keeping with these purposes we have consistently adhered to certain basic principles in resolving discovery disputes:

"First, the rules should be construed liberally to effectuate the full extent of their truth-seeking purpose.... Second, in close cases, the balance must be struck in favor of allowing discovery.... Third, the party opposing discovery bears the burden of showing 'good cause' that he is entitled to a protective order 'which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.' " Cameron v. District Court, supra, 193 Colo. at 290, 565 P.2d at 925-29.

In order to determine whether the respondent court properly applied the work product doctrine to the petitioner's interrogatories served upon MFA, we briefly examine the development of the doctrine since it was first enunciated by the United States Supreme Court in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). In Hickman the Court held that "written statements, private memoranda and personal recollections prepared by an adverse party's counsel in the course of his legal duties" are not discoverable in the absence of a showing of necessity or justification. 2 In the wake of Hickman conflicting views developed over (1) whether discovery of trial preparation materials required only a showing of relevancy and lack of privilege, or an additional showing of necessity, (2) whether the work product doctrine extends beyond work actually performed by lawyers, and (3) what relationship, if any, existed between the "good cause" requirement of Rule 34 and the "necessity or justification" of the work product doctrine. Notes of Advisory Committee on 1970 Amendments to Federal Rules of Civil Procedure (Advisory Committee Notes), 48 F.R.D. 487, 499-500 (1970).

Against a backdrop of varied judicial interpretations, 3 the United States Supreme Court in 1970 promulgated Fed.R.Civ.P. 26(b) as part of a major revision calculated to integrate into one rule the standards regulating the scope of pretrial discovery. Advisory Committee Notes, supra at 490. C.R.C.P. 26 parallels Fed.R.Civ.P. 26 and became effective April 1, 1970, shortly after the United States Supreme Court approved the federal counterpart. Rule 26(b) (3) provides in pertinent part:

"(A) party may obtain discovery of documents and tangible things otherwise discoverable under subsection (b)(1) of this Rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has 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. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation."

Rule 26(b)(3) broadens the scope of discovery to include matters formerly protected by some courts under the work product doctrine. Materials prepared "in anticipation of litigation or for trial" enjoy a qualified immunity from discovery in that they are discoverable only upon a showing by the party seeking discovery of a substantial need for such materials in the preparation of his case and an inability without undue hardship to obtain their substantial equivalent by other means. C.R.C.P. 26(b)(3), like Fed.R.Civ.P. 26(b)(3), draws no distinction between trial preparation materials compiled by an attorney and those prepared by some other agent of a party. 4 However, as the rule makes clear, the court in ordering the discovery of trial preparation materials must protect the "mental impressions, conclusions, opinions, or legal theories" of the attorney or other representative of the party. Documents and other tangible things not prepared "in anticipation of litigation or for trial" are discoverable so long as they appear "reasonably calculated to lead to the discovery of admissible evidence." C.R.C.P. 26(b) (1). 5

Rule 26(b)(3) is not intended to protect from general discovery materials prepared in the ordinary course of business. Advisory Committee Notes, supra, at 501. Courts generally have held that reports made and statements taken by an insurance adjuster for an insurance company in the normal course of investigating a claim are prepared in the regular course of the company's business and, therefore, not in anticipation of litigation or for trial. The rationale for such an approach was cogently expressed in Thomas Organ Co. v. Jadranska Slobodna Plovidba, 54 F.R.D. 367, 373 (D.C.N.D.Ill.1972):

"If ... the law were as suggested by the plaintiff, 6 i.e., that after a claim has arisen, litigation may be deemed a contingency and any document prepared after such a claim has arisen is prepared in anticipation of litigation as concerns Rule 26(b)(3) irrespective of whether an attorney in the role of counselor has been consulted, hardly any document authored...

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