Kuiper v. District Court of Eighth Judicial Dist. of State of Mont.

• Decision Date: 03 September 1981
• Docket Number: No. 81-147,81-147
• Citation: 632 P.2d 694,193 Mont. 452,38 St.Rep. 1288
• Parties: , 27 A.L.R.4th 553 Dennis KUIPER, Relator and Appellant, v. The DISTRICT COURT OF the EIGHTH JUDICIAL DISTRICT OF the STATE OF MONTANA et al., Respondents.
• Court: Montana Supreme Court

Page 694

632 P.2d 694

193 Mont. 452, 27 A.L.R.4th 553

Dennis KUIPER, Relator and Appellant, v. The DISTRICT COURT OF the EIGHTH JUDICIAL DISTRICT OF the STATE OF MONTANA et al., Respondents.

No. 81-147.

Supreme Court of Montana.

Submitted June 10, 1981.

Decided Aug. 12, 1981.

Rehearing Denied Sept. 3, 1981.

Conner, Baiz & Olson, Great Falls, Dennis Conner, argued, Great Falls, Niewald, Risjord & Waldick, Kansas City, Mo., for relator and appellant.

Church, Harris, Johnson & Williams, Great Falls, Cresap McCracken, argued, Great Falls, Dzivi, Conklin & Nybo, Great Falls, William Conklin, argued, Great Falls, Stinson, Mag & Frizzell, Kansas City, Mo., for respondents.

MORRISON, Justice.

Plaintiff, Dennis Kuiper (relator), served requests for admission asking Goodyear to admit the genuineness of documents in the possession of both defendant and relator and sought by deposition to orally examine the defendant's executives. Defendant, Goodyear Tire and Rubber Company (Goodyear), filed a motion seeking a protective order. The District Court granted the protective order, thereby preventing the relator from discovering the documents and compelling the answers.

The relator petitioned for a writ of supervisory control. On April 16, 1981, this Court entered an order accepting the application.

This case results from injuries received by the relator, on August 13, 1979. The relator was handling a truck tire inflated on a Goodyear K-type multi-piece truck rim. The complaint alleges that a side-ring explosively separated from the rim base, fracturing relator's skull. The complaint sets forth a claim in strict liability requiring proof that: (1) The product was in a defective condition and unreasonably dangerous to the user. (2) The defect caused the accident and injuries complained of herein. (3) The defect is traceable to the defendant.

On November 7, 1980, the relator filed a request for admission of genuineness of documents. The contested documents came into the possession of relator's attorney as the result of the documents originally being ordered produced in a similar but unrelated case. Messick v. Goodyear Tire & Rubber Co. (No. 74CV756-W-2 D.Mo.). In that case, the plaintiff had filed a request for production of documents, and after viewing the documents in camera, the federal district judge held that the documents were to be produced. After production, that case was settled and dismissed. Thereafter, the documents were widely disseminated. The relator, and many others, have seen the documents since that time.

The relator, in this case, has sought to depose certain of defendant's executives. The questions to which the defendant objected, pertained to the subject documents and to an investigation of the defendant by the National Highway Traffic Safety Administration (NHTSA). That investigation was commenced in 1970 for the purpose of determining why K-type truck rims seemed to cause numerous accidents. The relator seeks to establish that Goodyear attempted, through government influence, to terminate the investigation. The relator alleges that Goodyear "covered up" the defect in a product, which Goodyear knew to be unsafe, and that the relator is entitled to prove such facts to establish a basis for punitive damages.

The relator filed a motion under Rule 37(a), M.R.Civ.P., seeking to compel answers to deposition questions by requiring attendance of the defendant's employees at trial to testify about the disputed matters. The relator's motion was denied, and the District Court has ruled that the relator cannot inquire either about the documents or the investigation.

The following issues are now before this Court:

(1) Whether the District Court erred in determining the contested documents fell within the attorney-client privilege and the protection of the work product rule, thereby foreclosing the use of those documents in this litigation.

(2) Whether the District Court erred in precluding relator from using material, already in his possession, for any purpose.

(3) Whether the District Court erred in refusing to allow the relator to question Goodyear executives regarding the documents and facts surrounding the investigation.

With respect to the disputed documents, it is important to distinguish between two separate issues. Relator's request for admission of genuineness of documents was filed pursuant to Rule 36(a), M.R.Civ.P., allowing a party to make requests for admission of genuineness of documents covering the truth of any matters within the scope of Rule 26(b), M.R.Civ.P. Therefore, pursuant to Rule 26(b), a party must only admit the genuineness of documents which are not privileged and are discoverable under that rule. A resolution of this issue involves interpretation of attorney-client privilege as defined in section 26-1-803, MCA, and the work product rule governed by Rule 26(b)(3), M.R.Civ.P.

A separate and distinct issue relates to the District Court order forbidding use of the documents. The court order prevents the use of this information, in possession of relator, for any purpose whatsoever. Resolution of this issue involves discussion and application of rights of free speech, under article II, § 7, of the Montana Constitution, and the First Amendment of the United States Constitution.

With regard to deposition questions propounded by relator to Goodyear executives, relator seeks to compel the attendance of those witnesses at trial. Though the relief sought is inappropriate, we will treat relator's motion as one to compel answers under Rule 37(a), M.R.Civ.P., and decide whether relator is entitled to have Goodyear's witnesses answer the questions.

We resolve the constitutional issue first. The order of the trial court prevents relator from using the documents in relator's possession, for extra judicial purposes, as well as in the case at bar. Such an order has a chilling effect upon First Amendment rights and must be subjected to close scrutiny. In re Halkin, (D.C.Cir. 1979), 598 F.2d 176.

In Halkin, the plaintiffs alleged that certain government agencies conducted unlawful surveillance of citizens who opposed the war in Viet Nam. Plaintiffs sought damages and equitable relief for violation of their constitutional rights. During the pendency of the case, plaintiffs, through discovery, obtained certain documents which the government contended would impair United States diplomatic and foreign relations, reveal CIA intelligence sources, and implicate the privacy interests of third persons. Plaintiffs advised the government that they intended to release the information to the news media and, thereafter, defendant moved for a protective order pursuant to Rule 26(c). Defendant argued that public disclosure of the documents would be "prejudicial to the defendants' right to adjudication of the issues" in an unbiased climate and would deny the defendant a fair trial. Plaintiffs responded by contending that the protective order would violate the plaintiffs' First Amendment right. The United States District Court signed the defendant's proposed restraining order and the plaintiffs petitioned the court of appeals for a writ of mandamus, seeking to vacate the District Court order.

Judge Bazelon, writing for the court acknowledged that attorneys have historically been officers of the courts and that they have a legal and ethical responsibility to safeguard the right to a fair trial. However, Judge Bazelon said:

"... But lawyers' responsibility to protect the fairness of the judicial process does not mean that lawyers and litigants surrender their First Amendment rights at the courthouse door. Even public officials who have special responsibilities to the court do not necessarily have a 'more severely curtailed' right to freedom of expression than 'the average citizen'."

In Halkin, Judge Bazelon cited with approval, Chase v. Robson (7th Cir. 1970), 435 F.2d 1059, wherein the court held that an order barring counsel and parties from making public statements about the merits of the case, was unconstitutional. The Robson court concluded that the order constituted "... a prior restraint on protected First Amendment conduct". 598 F.2d at 187.

The court in Halkin acknowledged that a protective order may not constitute a prior restraint, but determined that the issue of "prior restraint" was not determinative. The court said:

"We do not believe, however, that the proper resolution of this case in the end turns on whether this order can be termed a prior restraint. We observe the admonition of Justice Frankfurter that the term 'prior restraint' should not be used as 'a talismanic test,' Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441, 77 S.Ct. 1325, (1327-1328, 1 L.Ed.2d 1469) (1957), and do not begin our examination with an almost insurmountable presumption against the validity of this order. However, the fact that the order poses many of the dangers of a prior restraint is sufficient to require close scrutiny of its impact on protected First Amendment expression." 598 F.2d at 186.

Noting that the United States Supreme Court had stressed that litigation may be "a vehicle for effective political expression and association, as well as a means of communicating useful information to the public", In re Primus (1978), 436 U.S. 412, 431, 98 S.Ct. 1893, 1904, 56 L.Ed.2d 417, the court stated that "... (l)itigation itself is a form of expression protected by the First Amendment". 598 F.2d at 187. The court in Halkin, concluded that a First Amendment right extends to use of discovery materials. 598 F.2d at 187.

Before a trial court can enter a protective order restraining free expression, the court must find that three criteria exist: (1) The harm posed by dissemination must be substantial and serious. (2) The restraining order must be narrowly drawn and be precise. (3) There must be no alternative means of protecting the public interest which intrudes less directly on expression. Nebraska Press...