Haynes v. Anderson

• Decision Date: 25 March 1992
• Docket Number: No. 90-M-1071,90-M-1071
• Citation: 597 So.2d 615
• Parties: Grace Sylvia HAYNES v. Rita ANDERSON.
• Court: Mississippi Supreme Court

Page 615

597 So.2d 615

Grace Sylvia HAYNES v. Rita ANDERSON.

No. 90-M-1071.

Supreme Court of Mississippi.

March 25, 1992.

Michael F. Myers, Steen Reynolds Dalehite & Currie, Jackson, for petitioner.

Harold Leon Miller, Jackson, for respondent.

Before DAN M. LEE, P.J., and PRATHER and SULLIVAN, JJ.

ON PETITION FOR INTERLOCUTORY APPEAL

SULLIVAN, Justice, for the Court:

Haynes seeks interlocutory review of a discovery order issued by the Circuit Court of the First Judicial District of Hinds County which required Haynes' insurer, State Farm, to produce an investigative file which it had prepared following an automobile accident between Haynes and Anderson, and also required State Farm's adjuster to submit to deposition. Haynes claims the matters sought are privileged work product and, therefore, protected from disclosure by Miss.R.Civ.P. 26(b)(3). The trial judge denied Haynes' Motion to Quash Subpoena and For a Protective Order, and likewise refused to certify this matter pursuant to Miss.Sup.Ct.R. 5.

I.

Haynes and Anderson were involved in an automobile accident on April 27, 1990. At the time, Haynes was insured by State Farm Mutual Automobile Insurance Company. Very soon thereafter, Haynes reported the accident, and State Farm began an investigation because of its duty under the insurance contract to defend Haynes in the event of litigation.

Five days after the accident, on May 2, 1990, State Farm was contacted in writing by attorney Harold Leon Miller and advised that Mr. Miller was representing Rita Anderson in her claim against Haynes. An adjuster also spoke personally with Miller on this date.

State Farm continued its investigation, and on May 25, 1990, Anderson filed a complaint against Haynes. On July 13, 1990, Anderson, through her attorney, served a notice of deposition subpoena duces tecum on Alan Stewart, a State Farm adjuster. This notice commanded Stewart to appear for deposition on a date certain, and to produce the investigative file prepared on behalf of Haynes.

Haynes sought to quash the subpoena and protect the investigative file of State Farm from disclosure on the ground that the information gathered by State Farm was collected in its capacity as representative of Haynes, and in anticipation of litigation, and was, therefore, protected from disclosure by Miss.R.Civ.P. 26(b)(3). The trial court ordered Alan Stewart to submit to the deposition, and further ordered him to produce that part of the investigative file which was accumulated prior to the initiation of litigation.

II.

Miss.R.Civ.P. 26(b)(3) provides in pertinent part as follows:

Subject to the provisions of subsection (b)(4) of this rule [regarding discovery of facts and opinions held by experts], a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (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.

Haynes argues that the material in question is work product prepared in anticipation of litigation, and that Anderson's failure to show substantial need prohibits disclosure. State Farm points to the contact with Miller on May 2 as notice that litigation would likely ensue. The letter written by Miller on May 2nd is quite clear in declaring that Miller had "been retained to represent Rita Anderson in her claim for injuries and damages sustained in that automobile accident" with Haynes. As for the period prior to May 2, State Farm suggests that it recognized the possibility of litigation once Haynes reported the accident such that all investigation thereafter was in anticipation of litigation.

The only other viable argument by Haynes is that the trial court erroneously failed to protect against the disclosure of the adjuster's mental impressions or opinions regarding this case, citing Rule 26(b)(3).

III.

Regarding the propriety of interlocutory appeal, we have what is arguably a question of law, or law application, within the meaning of Miss.Sup.Ct.R. 5. But, as a general rule, this Court has declared that it "is not about to become involved in the wholesale granting of interlocutory appeals of civil discovery disputes. Pre-trial discovery is governed by flexible rules well within the administrative capacity of our trial courts." In re Knapp, 536 So.2d 1330, 1333 (Miss.1988); Mississippi State Bar v. Attorney L, 511 So.2d 119, 121 (Miss.1987) ("Rarely will we entertain an interlocutory appeal regarding a discovery matter.")

A limited exception has been carved out for "substantial questions of privilege ... where correction of any error on appeal from a final judgment would be futile." Knapp, 536 So.2d at 1333. "If the matter thought privileged is ordered disclosed and is in fact disclosed, our later reversal would be founded on the Humpty Dumpty syndrome." Id. In Knapp this limited exception was applied to address a claim of the privilege against self-incrimination, and an argument that disclosure of the content of grand jury proceedings was prohibited.

One can easily see how Humpty Dumpty, once broken, could not be put back together again in Knapp. The same may be said in this case.

The trial court obviously viewed anything prepared prior to complaint being filed as discoverable, either because it was not prepared in anticipation of litigation, or because there was no showing by Anderson of substantial need. At the other extreme, State Farm claims that everything gathered is privileged work product because litigation was anticipated from the time Haynes reported the accident. At a minimum, State Farm says that contact from Anderson's attorney, Harold Miller, started the "anticipation of litigation" clock.

Anderson waxes more generally about State Farm's failure to raise specific objections to disclosure of specific items. She suggests that State Farm may still object to the disclosure of specific items, and the trial court can view these matters individually and decide their discoverability on an item by item basis. Anderson says it is unfair for State Farm to simply declare that all materials in the file are privileged work product.

IV.

First, we address the question whether the material in the investigative file of State Farm is privileged work product within the meaning of Rule 26(b)(3). Two things seem quite clear. First, that the file was assembled by an insurance adjuster as opposed to Haynes' attorney is irrelevant. Insurance representatives are included within the Rule. Second, one may anticipate litigation prior to complaint actually being filed. This issue boils down to whether all or part of the file assembled by State Farm on behalf of Haynes was "prepared in anticipation of litigation." And it should not be lost on courts or litigants alike that the burden rests on the party resisting discovery to show that the material sought was prepared in anticipation of litigation. Henderson v. Zurn Industries, Inc., 131 F.R.D. 560, 570 (S.D.Ind.1990).

No cases from this Court speak directly to this point, although cases addressing this question under the federal counter-part indicate that this is one of the most frequently litigated issues, and one on which there is no consensus. As a general rule, the material sought to be discovered, to come within the work product privilege, must have been prepared "with an eye to litigation" and not "in the ordinary course" of business. Sterling Drug, Inc. v. Harris, 488 F.Supp. 1019, 1026 (S.D.N.Y.1980); United States v. El Paso Co., 682 F.2d 530, 542 (5th Cir.1982), reh. denied 688 F.2d 840 (5th Cir.1982), cert. denied 466 U.S. 944, 104 S.Ct. 1927, 80 L.Ed.2d 473 (1984) (It is a "slippery task" to determine this).

Other courts have stated the general test:

The fact that litigation may still be a contingency at the time the document is prepared has not been held to render the privilege inapplicable, if the prospect of litigation is identifiable because of specific claims that have already arisen.... The test to be applied is whether, in light of the nature of the documents and the factual situation in this particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.

Hercules, Inc. v. Exxon Corp., 434 F.Supp. 136, 151 (D.Del.1977).

"Litigation need not be imminent ... as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation." United States v. El Paso Co., 682 F.2d at 542; see also Henderson v. Zurn Industries, Inc., 131 F.R.D. at 569-70; Binks Manufacturing Co. v. National Presto Industries, Inc., 709 F.2d 1109, 1118-19 (7th Cir.1983); Janicker v. George Washington University, 94 F.R.D. 648, 650 (D.D.C.1982).

In applying this general test in the context of insurance company files, courts have used one of three approaches. At one extreme, courts "that have dealt with the issue of whether investigative materials prepared by insurance claims adjusters is work-product prepared in anticipation of litigation have held that since insurance companies have a routine duty to investigate accidents, such materials are not prepared in anticipation of litigation but are prepared in the ordinary course of business absent unique circumstances showing the contrary." Schmidt v. California State Auto, Ass'n., 127 F.R.D. 182, 184 (D.Nev.1989) (suggesting this is the "majority" position); see also Fann v. Giant Food, Inc., 115 F.R.D. 593, 596 (D.D.C.1987), reconsideration denied 1987 WL 12370 (No. Civ.A. 86-3376) (1987) (investigation begun after plaintiff hired counsel but before suit filed amounts to "a more or less...