Jolly v. Superior Court of Pinal County

• Citation: 540 P.2d 658,112 Ariz. 186
• Decision Date: 23 September 1975
• Docket Number: No. 12061,12061
• Parties: Earl JOLLY, Supervisor of the Insurance and Claims Division of the Salt River Project, Petitioner, v. SUPERIOR COURT OF PINAL COUNTY, Arizona and the Honorable E. D. McBryde and SOUTHERN PACIFIC TRANSPORTATION CO, real party in interest, Respondents.
• Court: Supreme Court of Arizona

Page 658

540 P.2d 658

112 Ariz. 186

Earl JOLLY, Supervisor of the Insurance and Claims Division of the Salt River Project, Petitioner, v. SUPERIOR COURT OF PINAL COUNTY, Arizona and the Honorable E. D. McBryde and SOUTHERN PACIFIC TRANSPORTATION CO, real party in interest, Respondents.

No. 12061.

Supreme Court of Arizona, In Banc.

Sept. 23, 1975.

Jennings, Strouss & Salmon by William T. Birmingham and Roxana C. Bacon, Phoenix, for petitioner.

Evans, Kitchel & Jenckes by David L. Beaugureau, Phoenix, for respondents.

HOLOHAN, Justice.

The petitioner, Earl Jolly, seeks relief by a special action against the respondent court alleging an abuse of discretion in denying petitioner's motion for a protective order under Rule 26(c) of the Arizona Rules of Civil Procedure, 16 A.R.S. The denial of the motion for protective order was made in an action in which two employees of Salt River Project seek to recover damages from respondent railroad for injuries sustained in a truck-freight train collision; the truck was owned by Salt River Project and occupied by the two employees at the time of the collision. Mr. Earl Jolly, petitioner, serves in the capacity of Supervisor of the Insurance and Claim Division of the Salt River Project and is not a party to the negligence action.

On November 25, 1974, respondent railroad caused to be served on petitioner a subpoena duces tecum dated November 22, 1974 which required production of the following:

1) Petitioner present himself at counsel's for respondent transportation law offices on December 5, 1974 for the taking of petitioner's deposition;

2) Petitioner bring with him and produce all investigative notes, reports, correspondence, or reprimands of the Salt River Project or any of its departments relating in any way to the subject collision; and

3) Petitioner bring with him and produce all notes, records, reports, or other documents reflecting the names and addresses of all employees of Salt River Project who were working within a five-mile radius of the situs of the collision.

Petitioner's motion to quash the subpoena or, in the alternative, for a protective order was denied by respondent judge as untimely and moot. Petitioner thereafter filed a renewed motion for protective order which was denied by respondent judge with the finding that 'the material sought is relevant to the case at Bar, and that it would not be overly burdensome or oppressive for the subpoenaed witness to produce same.' Thereafter petitioner filed this Special Action.

Although this Court does possess the power to prevent enforcement of an unauthorized and nonappealable discovery order, Dean v. Superior Court,84 Ariz. 104, 324 P.2d 764 (1958), we reiterate our previous statements that this power shall be exercised only in 'rare' cases, as a matter of sound discretion according to the nature and circumstances of the case. Zimmerman v. Superior Court, 98 Ariz. 85, 402 P.2d 212 (1965); Dean v. Superior Court,supra. The fact that this Court does not routinely entertain petitions for extraordinary relief on discovery matters is apparent by the paucity of occasions in the past on which we have accepted jurisdiction over such actions. Cornet Stores v. Superior Court, 108 Ariz. 84, 492 P.2d 1191 (1972); Zimmerman v. Superior Court, supra; Industrial Commission v. Holohan, 97 Ariz. 122, 397 P.2d 624 (1964); Watts v. Superior Court, 87 Ariz. 1, 347 P.2d 565 (1959); Dean v. Superior Court, supra; Di Pietruntonio v. Superior Court, 84 Ariz. 291, 327 P.2d 746 (1958). We view the contentions raised by the petitioner extending to industrial labor relations to be of sufficient and extraordinary importance to justify the review requested.

Before reaching the merits of the issues raised, respondent railroad has urged that relief be denied because the actions of petitioner in the filing of the motions seeking a protective order were untimely throughout the attempted discovery. Rule 30(b), the precursor in part of the present Rule 26(c), required that an application for a protective order must be made 'seasonably.' This provision was deleted in the 1970 revision of the rule and the Advisory Committee's note accompanying the amendment offers no explanation as to why the word 'seasonably' was stricken. Advisory Committee Notes, Amendments of Federal Rules of Civil Procedure, eff. July 1, 1970. Notwithstanding the absence of reference in amended Rule 26(c) to a requirement for seasonable application for the order, we consider the timeliness of a motion for a protective order to be within the discretion of the court. 4 J. Moore, Federal Practice 26.68 (2d ed. 1970); 8 C. Wright & A. Miller, Federal Practice and Procedure § 2035, at 262 (1970).

The initial appearance for the deposition was scheduled for December 5, 1974, and continued by stipulation to January 7, 1975. On the 7th, respondent railroad was notified that a motion to quash the subpoena or, in the alternative, for a protective order, was outstanding; petitioner had mailed the motion to the Pinal County Superior Court the day before, January 6, 1975. The motion was denied by the superior court on the grounds of untimeliness and mootness. Petitioner then filed a renewed motion for a protective order on February 24, 1975. This motion was denied without sanctions on March 31, 1975. Respondent railroad again had served upon the petitioner a subpoena duces tecum for a deposition scheduled April 8, 1975. On this date, however, petitioner's counsel appeared in lieu of petitioner and instructed counsel for respondent railroad that a motion for protective order had been filed in the Superior Court of Pinal County that very morning requesting that petitioner be protected from producing the subject documents until the Supreme Court had rendered its decision respecting the Petition for Special Action.

In each of the above described attempts by respondent railroad to obtain compliance with the subpoena duces tecum, and particularly with the first attempt, there transpired a sufficient interval of time before the specified date of appearance and production of documents for petitioner to have sought a court order postponing or dispensing with his duty. Responding to an analogous chronology of events, the Ninth Circuit observed:

'Counsel's view seems to be that a party need not appear if a motion under Rule 30(b), F.R.Civ.P. is on file, even though it has not been acted upon. Any such rule would be an intolerable clog upon the discovery process. Rule 30(b) places the burden on the proposed deponent to get an order, not just to make a motion. And if there is not time to have his motion heard, the least that he can be expected to do is to get an order postponing the time of the deposition until his motion can be heard. He might also appear and seek to adjourn the deposition until an order can be obtained. (Rule 30(d)). But unless he has obtained a court order that postpones or dispenses with his duty to appear, that duty remains. Otherwise, as this case shows, a proposed deponent, by merely filing motions under Rule 30(b), could evade giving his deposition indefinitely. Under the Rules, it is for the court, not the deponent or his counsel, to relieve him of the duty to appear.' Pioche Mines Consolidated, Inc. v. Dolman, 333 F.2d 257, 269 (9th Cir. 1964), Cert denied, 380 U.S. 956, 85 S.Ct. 1081, 13 L.Ed.2d 972 (1965); See Twardzik v. Sepauley, 286 F.Supp. 346, 350 (E.D.Pa.1968).

Dolman poignantly displays the deleterious effect upon the discovery process which may result from a party's unilateral filing of a motion for a protective order, or the giving of notice of the filing thereof, on the very day the deposition and production of documents is to take place. In order for one to be relieved of the responsibility of complying with a properly issued subpoena duces tecum, it is necessary that court approval be obtained. Had the court below continued to deny the motion for protective order solely on the basis of untimeliness, we would find no abuse of discretion with that ruling. The fact that the superior court subsequently based its denial upon other grounds compels us to examine the petitioner's contentions on the merits.

In reverse order from that presented for review, the petitioner's first major contention is that respondent railroad's discovery request was unreasonable and oppressive within the language of Rule 26(c). Specifically, petitioner predicates his argument on 1) the need for employer-employee confidentiality to facilitate communications from workers respecting Salt River Project's safety operations, and 2) the adverse labor consequences which may ensue if investigative information is released in an alleged breach of Salt River Project's collective bargaining agreement. Petitioner is essentially asking this Court to grant a privilege from the discovery process for information given to an employer by its employees pursuant to investigations concerning possible violations of company safety standards.

The two cases adduced by petitioner to buttress his argument inadequately address the issues presented. Hecht v. Pro-Football, Inc., 46 F.R.D. 605 (D.D.C.1969), involved a discovery request for private financial records of non-parties. District Judge Holtzoff held that discovery of the records at the controversy's then early stage would constitute an unreasonable intrusion upon an individual's natural privacy. Id. at 607. Similarly inapposite to the facts at hand is the decision of City of Phoenix v. Peterson, 11 Ariz.App. 136, 462 P.2d 829 (1969). In Peterson, the Arizona Court of Appeals recognized a measure of privilege in police department personnel records insofar as the records related to 'irrelevant portions of the attached administrative file, subject to court supervision in the event of dispute.' Id. at 140. Matter pertaining exclusively to the fact, nature and outcome of police officer disciplinary proceedings were not included within the privilege....