Phelps Dodge Corp. v. Superior Court In and For Cochise County

• Decision Date: 08 March 1968
• Docket Number: CA-CIV,No. 2,2
• Citation: 438 P.2d 424,7 Ariz.App. 277
• Parties: PHELPS DODGE CORPORATION, a corporation, Petitioner, v. The SUPERIOR COURT IN AND FOR the COUNTY OF COCHISE, Respondent, and Sol Lederman, Real Party in Interest. 466.
• Court: Arizona Court of Appeals

Page 424

438 P.2d 424

7 Ariz.App. 277

PHELPS DODGE CORPORATION, a corporation, Petitioner, v. The SUPERIOR COURT IN AND FOR the COUNTY OF COCHISE, Respondent and Sol Lederman, Real Party in Interest.

No. 2 CA-CIV 466.

Court of Appeals of Arizona.

March 8, 1968.

Evans, Kitchel & Jenckes, by Earl H. Carroll, Phoenix, for petitioner.

Ralph R. Benson, Hollywood, and Ralph C. Morones, La Mirada, for real party in interest.

MOLLOY, Judge.

This certiorari proceeding seeks review of pretrial orders, entered in a civil action, denying the plaintiff's Rule 34 motion for inspection of documents, correspondence and records, and upholding an objection to a Rule 36 request for admissions. Conflicting policies of full discovery versus privilege against self-incrimination vie with each other in these pretrial gambits.

No prior Arizona decision has been called to our attention which reviews by special writ, as we are now doing, the Denial of discovery in the trial court. Dean v. Superior Court, 84 Ariz. 104, 324 P.2d 764, 73 A.L.R.2d 1 (1958), blazed a trail in this state for reviewing the Granting of discovery by writ of prohibition. In Dean, traditional language ('* * * in excess of jurisdiction * * *'--84 Ariz. at 109, 324 P.2d 764) was used, but in State ex rel. Ronan v. Superior Court, 95 Ariz. 319, 322, 390 P.2d 109, 111 (1964), our Supreme Court frankly adopted the California view that an '* * * abuse of discretion' may be reviewed by special writ.

In California, it is well established that a denial of proper pretrial discovery may be corrected by special writ. Chapin v. Superior Court, 239 Cal.App.2d 851, 49 Cal.Rptr. 199 (1966); Flora Crane Service, Inv. v. Superior Court, 234 Cal.App.2d 767, 45 Cal.Rptr. 79 (1965); Regents of University of Cal. v. Superior Court, 200 Cal.App.2d 787, 19 Cal.Rptr. 568 (1962); Carlson v. Superior Court of Los Angeles County, 56 Cal.2d 431, 15 Cal.Rptr. 132, 364 p.2d 308 (1961); West Pico Furniture Co. v. Superior Court, 56 Cal.2d 407, 15 Cal.Rptr. 119, 364 P.2d 295 (1961); Singer v. Superior Court of Contra Costa County, 54 Cal.2d 318, 5 Cal.Rptr. 697, 353 P.2d 305 (1960); Dowell v. Superior Court, 47 Cal.2d 483, 304 P.2d 1009 (1956); McClatchy Newspapers v. Superior Court, 26 Cal.2d 386, 159 P.2d 944 (1945).

The California courts afford such relief under the label of a writ of mandate, but we believe certiorari equally appropriate for the particular relief requested. Hastings v. Thurston, 100 Ariz. 302, 413 P.2d 767 (1966); Ward v. Stevens, 86 Ariz. 222, 344 P.2d 491 (1959); State v. Superior Court, 6 Ariz.App. 414, 433 P.2d 65 (1967). California is not alone in granting special writs to remedy improper denial of discovery, as indicated by cases annotated commencing 95 A.L.R.2d at 1241.

We agree with California that appeal is not an adequate remedy for denial of discovery because a litigant has a right to:

'* * * the means of obtaining in advance of the trial information concerning the issues and the means of producing at the trial the evidence necessary to sustain his action or defense.' McClatchy, 159 P.2d at 948--949.

The real party in interest, Lederman, is one of the defendants in an action pending in the respondent court, wherein the plaintiff Phelps Dodge seeks to recover damages for the alleged conspiracy of the defendants to defraud it by bribing its employees to increase the copper content of samples from scrap shipments sent by defendants to the Phelps Dodge Corporation smelter at Douglas, Arizona. On July 21, 1966, in Los Angeles, California, Phelps Dodge took the deposition of Lederman and another defendant. The latter claimed the privilege against self-incrimination as to numerous questions propounded to him. Lederman, however, did not invoke his Fifth Amendment privilege as to any questions asked of him and denied, Inter alia, that he knew a Mr. M_ _, a Phelps Dodge employee purportedly bribed.

The Rule 36 request asked Lederman to admit that he had purchased a cashier's check payable to M , a copy of which was attached to the request. The Rule 34 motion for inspection was directed to all records and correspondence in the possession of Lederman pertaining to his shipments and sales of scrap metal to the Douglas smelter of Phelps Dodge. Lederman filed written objections on the grounds that answers would tend to incriminate him. The lower court sustained Lederman's objections to both the motion for inspection and the request for admissions 'on the basis of a claim of a privilege against self-incrimination.'

The record below would indicate that no argument was presented to the trial court as to individualized treatment in ruling upon the respective objections. Since the governing principles differ, as we shall subsequently point out, we deem it necessary to consider each discovery request separately.

MOTION FOR INSPECTION

The petitioner challenges the trial court's ruling on two grounds: (1) failure to examine the documents sought to be inspected before ruling on the claim of privilege, and (2) the privilege had been waived.

The petitioner contends the mere assertion of the privilege against self-incrimination, without more, was insufficient. It argues that Lederman should have been required to produce the documents sought to be inspected so that the court might examine them to determine whether they contained matters which might tend to incriminate. Courts on occasion have deemed such procedure to be appropriate. See, e.g., Leahy v. City of Knoxville, 193 Tenn. 242, 245 S.W.2d 772, 775 (1951); and Manning v. Mercantile Securities Co., 242 Ill. 584, 90 N.E. 238, 241 (1909).

The claim of the privilege against self-incrimination is fraught with difficulties for which the courts have sought to make adequate provision. As Judge Learned Hand, in United States v. Weisman, 111 F.2d 260 (2d Cir. 1940), aptly commented:

'Obviously a witness may not be compelled to do more than show that the answer is likely to be dangerous to him, else he will be forced to disclose those very facts which the privilege protects. Logically, indeed, he is boxed in a paradox, for he must prove the criminatory character of what it is his privilege to suppress just because it is criminatory. The only practicable solution is to be content with the door's being set a little ajar, and while at times this no doubt partially destroys the privilege, and at times it permits the suppression of competent evidence, nothing better is available.' 111 F.2d at 262.

Apparently the trial court here concluded it was unnecessary to peek through any crack in the door to determine whether the privilege was properly claimed, and we see no abuse of discretion in its so doing.

The constitutional guarantee against testimonial compulsion embraces not only testimony which is directly incriminatory but also that which would furnish a link in the chain of evidence needed to prosecute the one claiming the privilege, Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170 (1950); Wales v. Tax Commission, 100 Ariz. 181, 412 P.2d 472 (1966). The privilege may be invoked when the claimant has reasonable cause to apprehend danger. Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951); Mason v. United States, 244 U.S. 362, 37 S.Ct. 621, 61 L.Ed. 1198 (1917).

We believe the very nature of this action makes it evident that there is some cause 'to apprehend danger' from the request to inspect these records and correspondence. Phelps Dodge's claim for relief is entirely predicated upon the alleged 'deliberate and fraudulent conduct' of the defendants. Although we do not profess to omniscience, we are unable to conceive of anything in the documents sought which would be either material to this action or conducive to the discovery of material evidence and which would not be equally pertinent to a criminal prosecution under one of several criminal statutes. See, e.g., A.R.S. §§ 13--312; 13--331, subsec. A, par. 4; 13--661, subsec. A, par. 3. Particularly pertinent is the fact that Phelps Dodge does not point out a likely category of evidence which would be both noncriminatory and useful for its trial preparation. Absent such showing, we hold the trial court did not abuse its discretion in refusing to make the substantial effort of examining In camera the multifarious documents designated in the motion for inspection.

The petitioner further argues that even if there was a reasonable basis for claiming the privilege, the privilege was waived by Lederman when his deposition was taken by the petitioner.

It is recognized that the privilege against self-incrimination may be 'waived.' Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958); State v. Taylor, 99 Ariz. 85, 407 P.2d 59 (1965); 8 Wigmore, Evidence § 2275 (McNaughton Revision 1961). A waiver is generally defined as the 'intentional relinquishment of a known right.' Albert v. Joralemon, 271 F.2d 236 (9th Cir. 1959); State v. Anderson, 96 Ariz. 123, 392 P.2d 784 (1964).

In dealing with a Fifth Amendment 'waiver,' however, courts seldom refer to this classic definition. More often, courts fasten upon objective criteria which, as a matter of law, are held to be a waiver. See, e.g., Brown v. United States, 356 U.S. 148, 155--156, 78 S.Ct. 622, 627, 2 L.Ed.2d 589 (1958). A law review note states:

'* * * waiver through testimony is a fiction--the witness is Held to have waived his right for reasons which often have little to do with his subjective desire.' 14 Stan.L.Rev. 811, 813, Waiver of the Privilege Against Self-Incrimination (1962).

Occasionally the question of a true waiver has presented itself, i.e., a question of whether the witness has intentionally given up his Fifth Amendment privilege by a statement or declaration to this effect. In such instances, courts have evidenced great reluctance to find a waiver. See Emspak v. United States, 349 U.S. 190, 75 S.Ct. 687, 99 L.Ed. 997 (1955).

There is a decisive...