Heidebrink v. Moriwaki

Decision Date05 September 1985
Docket NumberNo. 51017-2,51017-2
Citation104 Wn.2d 392,706 P.2d 212
Parties, 54 USLW 2169 Carol R. HEIDEBRINK and Gary T. Heidebrink, husband and wife, Respondents, v. Nobuo MORIWAKI and "Jane Doe" Moriwaki, husband and wife, and the marital community composed thereof, Petitioners.
CourtWashington Supreme Court

Layman, Loft, Smythe & Arpin, Mr. Gregory Arpin, Mr. Ross P. White, Spokane, for petitioners.

Dano, Cone, Fraser & Gilreath, Mr. Harrison Dano, Mr. Theodore Lucas, Moses Lake, for respondents.

Washington Ass'n of Defense Counsel, William J. Leedom, William H. Robertson, Seattle, Wash.

National Ass'n of Independent Insurers, John B. Crosby, Des Plaines, Ill.

Washington Trial Lawyers Ass'n, Bryan Harnetiaux, Spokane, Wash.

PEARSON, Justice.

The issue presented by this case is whether the statement of an insured to his or her insurance company is protected by the attorney-client privilege or the work product immunity rule. The trial court ruled the statement was not discoverable. The Court of Appeals reversed and ordered production of the statement. We now reverse the decision of the Court of Appeals on the basis that the statement is protected by the work product immunity rule codified in CR 26(b)(3).


This lawsuit arose from a multiple car collision on a State highway near Moses Lake, Washington, on March 15, 1982. Respondents allege that Mrs. Heidebrink was traveling west on this highway when suddenly her car was surrounded by a dense cloud of smoke, causing her to collide with the car ahead of her. Several cars were involved in a chain collision and other motorists, in addition to Mrs Heidebrink, were injured. Respondents claim that the cloud of smoke and the ensuing collisions were caused by Mr. Moriwaki's negligence in burning grain stubble in an adjacent field.

At the time of the incident Mr. Moriwaki carried a liability insurance policy issued by Continental Insurance Company (Continental). Under the terms of this policy, Continental was contractually obligated to defend Mr. Moriwaki against all insured claims. This contractual duty allowed Continental to select and retain an attorney to represent the insured and required the insured to cooperate in his defense.

On March 17, 1982, two days after the accident, Tim Dahmen, an investigator and adjuster for Continental, contacted Mr. Moriwaki and tape-recorded his statement relating to the accident. The tape was subsequently transcribed. Several months later the Heidebrinks filed a personal injury action against the Moriwakis. Thereafter Mr. Moriwaki's deposition was taken at which time he testified about the existence of the statement.

Counsel for respondents requested a copy of the transcript of Mr. Moriwaki's statement. Defense counsel objected on grounds of work product and attorney-client privilege. Respondents subsequently moved for an order compelling production. The trial court denied the order. The Court of Appeals reversed. Heidebrink v. Moriwaki, 38 Wash.App. 388, 685 P.2d 1109 (1984).


Pursuant to Fed.R.Civ.P. 26(b)(1) and CR 26(b)(1), in their current form, a party may obtain discovery of any matter which is relevant to the subject matter involved in the pending action and not privileged. The scope of such discovery, however, is limited by Fed.R.Civ.P. 26(b)(3) and CR 26(b)(3) which provide in relevant part:

Subject to the provisions of subdivision (b)(4) of this rule, 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.

Fed.R.Civ.P. 26(b)(3) and CR 26(b)(3) embody the policies set forth by the United States Supreme Court over three decades ago in the now famous decision of Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). In fact, more recently the Supreme Court explicitly stated that rule 26(b)(3) codifies the principles of the "work product doctrine" first established in Hickman. Upjohn Co. v. United States, 449 U.S. 383, 401, 101 S.Ct. 677, 688, 66 L.Ed.2d 584 (1981).

In Hickman the plaintiff had attempted to discover the statements of witnesses and any other relevant information the attorney for the defendants had prepared with an "eye" towards litigation. Hickman, 329 U.S. at 498-99, 67 S.Ct. at 387. While examining the scope of discovery question, the Supreme Court explained that the discovery rules were to be accorded broad and liberal treatment. Trials were no longer to be carried on in the dark; instead, the goal of discovery was to ensure mutual knowledge of all relevant facts. Hickman, at 501, 507, 67 S.Ct. at 388, 391. However, the Court stressed that it was necessary to maintain certain restraints on bad faith, irrelevant, and privileged inquiries in order to ensure the just and fair resolution of disputes. Hence, the Court held that an attorney's "work product", although relevant and not privileged, is discoverable only upon a showing of good cause. Hickman, at 512, 67 S.Ct. at 394.

In its original form, Fed.R.Civ.P. 26(b)(3) protected only those writings prepared by an attorney in preparation for trial. However, Fed.R.Civ.P. 34 contained a "good cause" requirement which prevented discovery of other materials if the party seeking discovery did not show good cause for such discovery. The rule in this state as originally adopted was different than the federal rule. It provided in part:

The court need not order the production or inspection of any writing obtained or prepared by the adverse party, his attorney, surety, indemnitor or agent in anticipation of litigation or in preparation for trial.

CR 26(b), 71 Wn.2d lxvii (1967). Although never interpreted by this court, this rule apparently placed the matter of discovery within the discretion of the court and required a showing of good cause before allowing such discovery.

As history shows us, problems arose over the proper scope of Fed.R.Civ.P. 26(b)(3). The rule did not specifically address the extent to which a party could discover materials prepared for trial by non-attorneys nor did it indicate exactly what was meant by "good cause". See Note, Work Product Discovery: A Multifactor Approach to the Anticipation of Litigation Requirement in Federal Rule of Civil Procedure 26(b)(3), 66 Iowa L.Rev. 1277 (1981). To remedy these deficiencies the federal rules were amended in 1970. The requirement of good cause was deleted from Fed.R.Civ.P. 34 and Fed.R.Civ.P. 26(b)(3) was changed to read as previously provided herein. Whether this State would have confronted similar problems with CR 26(b)(3) as originally adopted is of little consequence since in 1972 it was amended to conform with the federal rule. CR 26(b)(3), 80 Wn.2d 1189 (1972). Thus, under both the federal and Washington rules, there is no distinction between attorney and non-attorney work product. The test for determining whether such work product is discoverable is whether the documents were prepared in anticipation of litigation and, if so, whether the party seeking discovery can show substantial need.

Many federal courts and other state courts have struggled over the proper interpretation of CR 26(b)(3). The Court of Appeals found the analysis in Hawkins v. District Court, 638 P.2d 1372 (Colo.1982) and Thomas Organ Co. v. Jadranska Slobodna Plovidba, 54 F.R.D. 367 (N.D.Ill.1972) very persuasive.

Hawkins involved an action by an insured against his insurance carrier for bad faith. Plaintiff sought discovery of notes and reports of defendant's adjuster regarding his interviews with several witnesses. In ruling that the documents were discoverable, the court concluded:

Because a substantial part of an insurance company's business is to investigate claims made by an insured against the company or by some other party against an insured, it must be presumed that such investigations are part of the normal business activity of the company and that reports and witness' statements compiled by or on behalf of the insurer in the course of such investigations are ordinary business records as distinguished from trial preparation materials.

Hawkins, at 1378.

Thomas Organ Co. involved a defendant's request for production of two documents written by a marine surveyor hired by plaintiff's insured. In deciding that the documents were discoverable, the court asserted that unless the documents are requested by or prepared for an attorney, or otherwise reflect the employment of an attorney's legal expertise, they are conclusively presumed to have been made in the ordinary course of business. Thomas Organ Co., at 372.

In addition to the two cases already mentioned, respondents set forth several more for the proposition that an insured's statement to his insurer is discoverable. Several of these cases can be set aside immediately as not on point since they were decided prior to CR 26(b)(3) being amended. See Jackson v. Kroblin Refrigerated Xpress, Inc., 49 F.R.D. 134 (N.D.W.Va.1970); Southern Ry. Co. v. Campbell, 309 F.2d 569 (5th Cir.1962); Rucker v. Wabash R.R. Co., 418 F.2d 146 (7th Cir.1969); Gottlieb v. Bresler, 24 F.R.D. 371 (D.C.1959); Alseike v. Miller, 196 Kan. 547, 412 P.2d 1007 (1966).

Several other cases cited by respondents are likewise not directly on point since, as in the Hawkins and Thomas Organ Co. cases, they concern reports and statements of non-party witnesses rather than statements of an insured. See Martin v. N.V. Nederlandsche Amerikaansche Stoomvaart Maatchappij, 8 F.R.D. 363 (S.D.N.Y.1948) (report made by consulting engineers for...

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