Medford v. Duggan

• Decision Date: 09 July 1999
• Citation: 323 N.J. Super. 127,732 A.2d 533
• Parties: Nancy MEDFORD and David Medford, Plaintiffs-Respondents, v. Doreen DUGGAN and Michael P. Duggan, Defendants/Third-Party Plaintiffs/Appellants, v. Rossi Ranch, Lynn Foster, John Doe 1-10 and ABC Companies, 1-10, Third-Party Defendants.
• Court: New Jersey Superior Court

732 A.2d 533

323 N.J. Super. 127

Nancy MEDFORD and David Medford, Plaintiffs-Respondents, v. Doreen DUGGAN and Michael P. Duggan, Defendants/Third-Party Plaintiffs/Appellants, v. Rossi Ranch, Lynn Foster, John Doe 1--10, Third-Party Defendants.

Superior Court of New Jersey, Appellate Division.

Argued February 23, 1999.

Decided July 9, 1999.

John M. Kearney, for defendants/third-party plaintiffs-appellants (Sellar, Richardson, P.C., attorneys, Roseland; Mr. Kearney, of counsel and on the brief; Julia C. Talarick, Edgewater, on the brief).

Jonathan E. Levitt, Roseland, for plaintiffs-respondents (Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer & Gladstone, attorneys; Mr. Levitt and Charles X. Gormally, on the brief).

Before Judges BROCHIN, KLEINER and STEINBERG.

The opinion of the court was delivered by STEINBERG, J.A.D.

Pursuant to leave granted, defendants Doreen Duggan and Michael P. Duggan appeal from an interlocutory order of the Law Division requiring their attorney to provide the attorney for plaintiffs Nancy Medford and David Medford with copies of statements made by defendant Doreen Duggan and a non-party witness, Edith Wisniewski, to defendants' insurance carrier. We affirm in part and reverse in part.

Plaintiffs allege that on December 8, 1994, defendants' dog left defendants' property, crossed the street, barked and caused a horse that plaintiff Nancy Medford was riding to rear up and throw her. On December 5, 1996, almost two years after the incident, Nancy Medford filed suit against defendants seeking damages for the injuries she sustained when thrown from her horse. David Medford, her husband, filed a per quod claim. Plaintiffs allege that defendants negligently controlled their dog. The complaint was served upon defendants on January 14, 1997. On that same date Doreen Duggan telephoned her insurance carrier, Amica Mutual Insurance Company (Amica), to advise them that suit had been filed. She also advised Amica that Ms. Wisniewski was a witness. Shortly thereafter the summons and complaint were sent to Amica.

In opposition to plaintiffs' motion for the production of statements of Doreen Duggan and Wisniewski, Amica supplied the certification of Lisa DeCubellis, a litigation supervisor, asserting that the statements were obtained in contemplation of Amica's defense of the law suit. Shortly after the statements were obtained, DeCubellis asserted that she forwarded the summons and complaint to defense counsel for an answer to be filed on behalf of defendants.

Doreen Duggan was deposed on April 7, 1998. She testified that she was at home on December 8, 1994, with her daughter and Wisniewski. She said Wisniewski was hanging curtains in the window of one of the upstairs rooms. The dog was outside. She said that at the time of the incident Wisniewski yelled to her to either open the door or go out the door. She said she looked out the front door and saw a horse chasing her dog in circles on her front lawn. She observed a woman chasing the horse who asked her to call for help since there was a rider down. She did not know whether Wisniewski saw the person, presumably Nancy Medford, thrown from the horse or any of the preceding events. She then said that Wisniewski told her that the horse was chasing the dog around the front lawn, observing "that's to the best of my memory, it was years ago".

Wisniewski was deposed on July 8, 1998. She said she was upstairs in the Duggan home working at a window and saw a horse run into the front yard with a woman running after it. When asked if she saw the dog outside at that time she responded: "No. Then again, it's been a long time. I can't remember what happened last month". She could not recall whether she saw the dog outside at the time she observed the horse but knew she had given a statement to Duggan's insurance carrier at about the time of the event but could not find the copy. She explained that shortly after being served with the deposition subpoena, she received a telephone call from an attorney who asked her some questions regarding the incident. She advised him that she wanted a copy of her statement to Amica since "everything is not very clear in my mind what exactly happened". Although she assumed the dog was outside at the time of the incident, she was not sure. At the conclusion of the deposition she told plaintiffs' attorney that if she found her copy of her statement to Amica, she would provide counsel with a copy. Thereafter, plaintiffs' attorney asked defendants' attorney to supply a copy of Wisniewski's statement to Amica. Defense counsel refused to supply a copy of the statement contending it was "clearly privileged work-product".

Plaintiffs filed a motion seeking an order compelling defendants to turn over the statements given by Doreen Duggan and Wisniewski to Amica. Relying on Payton v. N.J. Turnpike Authority, 148 N.J. 524, 691 A.2d 321 (1997), the motion judge concluded that the statements were obtained as the result of a routine investigation and were not prepared in anticipation of litigation. In addition, the motion judge concluded that there was no showing that Duggan or Wisniewski believed the statements were confidential. Moreover, the motion judge concluded that there was substantial need for the Wisniewski statement in light of her lack of a clear recollection of the incident at the time of her deposition.

In this appeal defendants advance the following arguments: (1) the motion judge erred in concluding that statements obtained by an insurance carrier after suit was commenced are not statements prepared in anticipation of litigation protected by the work-product privilege; (2) the motion judge failed to apply the two-part test of "substantial need" and "undue hardship" as required by R. 4:10-2(c); and (3) the motion judge's conclusion that there was no reasonable expectation of confidentiality is inapplicable to the work-product privilege.

Our rules of discovery are designed to eliminate, as far as possible, concealment and surprise at trial so that cases are decided upon their merits rather than the skill and maneuvering of counsel. Abtrax Pharmaceuticals, Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 512, 655 A.2d 1368 (1995). As far back as 1951, Chief Justice Vanderbilt observed that the purpose of discovery is to insure that the outcome of litigation depends upon its merits rather than on the craftiness of the parties or guile of their counsel. Lang v. Morgan's Home Equip. Corp., 6 N.J. 333, 338, 78 A.2d 705 (1951). Justice is better achieved when there has been full disclosure so that the parties are conversant with all the available facts. Jenkins v. Rainner, 69 N.J. 50, 56, 350 A.2d 473 (1976). There is an inherent tension between our policy of promoting full disclosure so that each party has the opportunity to discover facts that may be reasonably calculated to lead to the discovery of admissible evidence and R. 4:10-2(c), the work-product rule, which sets forth a qualified privilege regarding discovery of documents or other tangible things prepared in anticipation of litigation or for trial. In promulgating R. 4:10-2(c), we have implicitly determined that the broad scope of permissible discovery available pursuant to R. 4:10-2(a) is subordinate to the need to protect from discovery documents and tangible things prepared in anticipation of litigation or for trial unless the party seeking discovery can satisfy a two-pronged test: (1) substantial need of the materials in the preparation of the case, and (2) an inability, without undue hardship, to obtain the substantial equivalent of the materials by other means. See R. 4:10-2(c). The rule further provides that if discovery is ordered, the court must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. Moreover, the rule is not limited to documents prepared by an attorney. Documents or tangible things prepared by a consultant, surety, indemnitor, insurer, or agent also fall within the protection of the rule provided they are prepared in anticipation of litigation or for trial. Ibid.

We begin our analysis with the observation that the disposition of discovery issues is left to the sound discretion of the trial court. Its determination of these issues are entitled to deference in the absence of a mistaken exercise of discretion. Payton v. New Jersey Turnpike Authority, supra, 148 N.J. at 559, 691 A.2d 321. However, deference is inappropriate if the court's determination is based on a mistaken understanding of the applicable law. Ibid.

When a request for discovery is resisted based upon a contention that the items sought are work-product, the court must make a threshold determination of whether the items sought were, in fact, prepared in anticipation of litigation or for trial. Our research has failed to disclose a reported opinion in New Jersey considering this threshold determination of when a statement by a witness taken by an insurer is obtained in anticipation of litigation. The issue has received disparate treatment in other jurisdictions. See Hall v. Goodwin, 775 P.2d 291 (Okla.1989)

(statement of witness obtained by insurance carrier's attorney before suit was filed is not obtained in anticipation of litigation and is not work-product); DeMoss Rexall Drugs v. Dobson, 540 N.E.2d 655 (Ind.App.1989) (statements taken to enable insurer to obtain details of claim and make an initial determination of its position with respect to the claim is not obtained in anticipation of litigation and is discoverable); Henry Enterprises, Inc. v. Smith, 225 Kan. 615, 592 P.2d 915 (1979) (statements of witnesses taken by insurer prior to commencement of litigation are discoverable since not obtained in anticipation of litigation); National Tank Company v. Brotherton, 851 S.W.2d 193 (Tex.1993) (when the circumstances surrounding an investigation indicate to...