Rakes v. Fulcher

• Decision Date: 09 March 1970
• Citation: 172 S.E.2d 751,210 Va. 542
• Parties: Jeroline Archer RAKES v. James E. (Bill) FULCHER et al.
• Court: Virginia Supreme Court

Page 751

172 S.E.2d 751

210 Va. 542

Jeroline Archer RAKES v. James E. (Bill) FULCHER et al.

Supreme Court of Appeals of Virginia.

March 9, 1970.

R. Reid Young, Jr., Martinsville (George M. Warren, Jr., Bristol, Jackson L. Kiser, Martinsville, Warren & Bowie, Bristol, Young, Kiser, Frith & Haskins, Martinsville, on brief), for plaintiff in error.

Frank O. Meade, Danville (Meade, Tate & Meade, Danville, on brief), for defendants in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON and COCHRAN, JJ.

I'ANSON, Justice.

On January 26, 1967, plaintiff, Jeroline Archer Rakes, instituted this action against the defendants, James E. Fulcher and Blue Ridge Transfer Company, Inc. (Blue Ridge), to recover damages for bodily injuries which she allegedly sustained as a result of the negligent operation of a tractor-trailer owned by Blue Ridge and operated by Fulcher in the course of his employment. A jury returned a verdict in favor of the defendant Fulcher, and the trial judge entered judgment thereon for both Fulcher and Blue Ridge. Plaintiff is here on a writ of error to the judgment.

Plaintiff contends that the trial court erred (1) in holding that she had failed to show good cause for an order, under Rule 4:9, requiring defendants to produce certain designated documents; (2) in limiting plaintiff's right of cross-examination of defendants' witness Stout; and (3) in entering judgment in favor of both defendants when the jury's verdict found in favor of defendant Fulcher and was silent as to Blue Ridge.

Plaintiff's evidence shows that on April 13, 1965, she was driving an automobile east on U.S. Route 57, a four-lane highway divided by a grass median strip, in Henry County, Virginia. When she attempted to pass the tractor-trailer driven by defendant Fulcher, which was traveling east in the outside lane, it swerved over into her lane of travel, causing her car to turn over in the median strip. As a result, plaintiff suffered serious permanent injuries.

Defendant Fulcher testified that he was traveling east in the outside lane when he glanced in his mirror and saw plaintiff's car go out of control; at that time she was behind a flatbed truck, which was behind him. Taylor Hairston, driver of the flatbed truck, and Stuart Stout, a passenger, testified that they saw the plaintiff's car go out of control as it was coming from behind their truck. The investigating officer stated that tire pressure marks from plaintiff's car stated 'just to the right of the center line' and indicated that plaintiff's vehicle had 'veered sharply.'

On September 23, 1967, plaintiff filed a motion, pursuant to Rule 4:9, requesting the court to enter an order requiring defendants, among other things, to produce all written statements of witnesses interviewed and all narratives and written reports of claims adjusters relative to their investigative activities and contacts with possible witnesses relating to the accident. The supporting affidavit stated that affiant believed that 'immediately upon the occurrence of the accident or soon thereafter,' the defendants, through their agents or agents of their insurance carrier, conducted an investigation of the facts and circumstances leading up to the accident; that the information requested was necessary and important to prove the negligence of Fulcher and it was not readily available to plaintiff. On the same day, the plaintiff filed interrogatories requesting the defendants to furnish her with the names and addresses of all persons known to them who had knowledge of the facts and circumstances surrounding the accident.

A counter affidavit of defendants' counsel stated that defendants had no knowledge of their alleged involvement in the accident until this action was filed; that no investigation had been made by them or the agents of their insurance carrier prior to notice of this action; and that the statements of witnesses taken thereafter were a part of his work product for use in preparation for trial.

The trial court denied plaintiff's motion to produce documents on the grounds that good cause had not been shown, but directed defendants to answer the interrogatories.

Thereafter plaintiff took discovery depositions of defendant Fulcher and John Lynn and Herald Dean, claims adjusters for Allstate Insurance Company, defendants' insurer. Each adjuster was asked the contents of statements taken from witnesses they had interviewed. Defendants' attorney objected on the grounds that this was an attempt to circumvent the trial court's order denying production of the documents, and the examination along that line was discontinued.

Later plaintiff's attorney renewed his motion for production of the documents previously requested. His supplemental affidavit in support of the motion stated that adjuster Lynn had not said in his deposition that he had talked to one Clifford Stone, who had taken statements from witness Hairston on May 26, 1965, and from defendant Fulcher on August 10, 1965; and that the documents were needed to test the accuracy of Lynn's deposition.

Upon representation of defendants' counsel that plaintiff had been furnished the names and addresses of all persons who had knowledge of the facts and circumstances surrounding the accident, the trial court denied plaintiff's second motion for the production of documents previously requested.

Rule 4:9 was adopted by this court on November 29, 1966, to become effective February 1, 1967, and there are no Virginia cases interpreting it. See Craig, New Virginia Rules for Deposition and Discovery, 53 Va.L.Rev. 1818, 1835--39, for comments on the new procedure. The pertinent part of the rule is as follows:

'(a) Upon motion of any party showing good cause therefor and upon notice to all other parties, and subject to the provisions of Rule 4:5(b), the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 4:1(b) and which are in his possession, custody, or control * * *.'

Our rule is substantially the same as Rule 34 of the Federal Rules of Civil Procedure, Title 28 U.S.C.A., and both counsel urge us to consider the federal cases interpreting the rule.

One purpose of discovery procedures is to obtain evidence in the sole possession of one party and unobtainable by opposing counsel through independent means. But more than mere relevancy to the issue of the documents sought is necessary; the movant must show good cause. Guilford National Bank of Greensboro v. Southern Ry. Co., 297 F.2d 921, 923--924 (4th Cir. 1962); 74 Harv.L.Rev. 940, 965--67 (1961). Contra, DeBruce v. Pennsylvania R.R. Co., 6 F.R.D. 403 (E.D.Pa.1947).

A review of the many cases interpreting Rule 34 shows that the federal courts are not in agreement on the meaning of 'good cause' as used in the context of the rule. It has been said 'that where special considerations applicable to a lawyer's work product are not present, a showing that the documents in question are or might lead to admissible evidence, and that they are not otherwise available to the moving party, is a sufficient showing of good cause. Some courts have gone beyond this, and seem to suggest that * * * good cause is established by showing simply that the papers sought are otherwise unavailable and are relevant to the subject matter of the action. Other cases, including all the decisions in point from courts of appeals, reject this, and require some special circumstances in addition to relevancy to establish good cause.' Wright, Federal Courts, § 87, pp. 337--38 (1963).

The granting or denying of a request under Rule 34 is a matter within the trial court's discretion and will be reversed only if the action taken was improvident and affected substantial rights. Guilford National Bank of Greensboro v. Southern Ry. Co., Supra, 297 F.2d at 926; Goosman v. A. Duie Pyle, Inc., 320 F.2d 45 (4th Cir. 1963). See also Vaughn v. Chrysler Corp., 46 F.R.D. 6, 8 (W.D.Okla.1968); Alseike v. Miller, 196 Kan. 547, 553--554, 412 P.2d 1007, 1014 (1966).

The mere assertion by affidavit that discovery is necessary for a movant to investigate fully and prepare his case is clearly insufficient as a statement of good cause. Holt v. The James Sheridan, 12 F.R.D. 72 (S.D.N.Y.1951); Aetna Life Ins. Co. v. Little Rock Basket Co., 14 F.R.D. 383 (E.D.Ark.1953). Neither is good cause established when the moving party has not shown a bona fide effort to obtain the information by independent investigation. Goldner v. Chicago & N.W. Ry. Sys., 13 F.R.D. 326 (N.D.Ill.1952).

Within the scope of the good cause rule is the 'work product' doctrine, which protects an attorney from opening his files for inspection by an opposing attorney. This doctrine, however, does not offer absolute immunity, and discovery will be permitted where a showing of necessity greater than the normal requirement for good cause is made. Hickman v. Taylor, 329 U.S. 495, 511--512, 67 S.Ct. 385, 394, 91 L.Ed. 451, 462--463 (1947). See also Kearney & Trecker Corp. v. Giddings & Lewis, Inc., 296 F.Supp. 979, 982 (E.D.Wis.1969).

While there are cases holding to the contrary, Alltmont v. United States, 177 F.2d ...