Riddle Spring Realty Co. v. State

• Decision Date: 30 June 1966
• Citation: 107 N.H. 271,220 A.2d 751
• Parties: RIDDLE SPRING REALTY CO., Inc. v. STATE of New Hampshire.
• Court: New Hampshire Supreme Court

Page 751

220 A.2d 751

107 N.H. 271

RIDDLE SPRING REALTY CO., Inc. v. STATE of New Hampshire.

Supreme Court of New Hampshire.

Argued May 4, 1966.

Decided June 30, 1966.

Sheehan, Phinney, Bass & Green and Joseph F. Devan, Manchester (Joseph F. Devan, Manchester orally) for plaintiff.

George S. Pappagianis, Atty. Gen., and R. Peter Shapiro, Asst. Atty. Gen., for defendant.

LAMPRON, Justice.

The interrogatories which the State was ordered to answer were the following:

'1. What is the name, address, and job title of the person executing the answers to these interrogatories?

'2. Prior to answering these interrogatories have you reviewed all data within the possession and control of the State of New Hampshire pertinent to the condemnation of the plaintiff's land?

'3. Describe by metes, bounds and square footage, the land area taken from the plaintiff.

'4. State whether the damages awarded to the plaintiff were assessed by a full-time employee of the State, or by an independent real estate appraiser.

(a) Was more than one appraisal made?

'6. What was the date of each appraisal?

'8. What was the highest, best, and most advantageous use of the realty taken'?

The State has waived its objections to answering interrogatories 1, 2, and 3.

The interrogatories which the State refused to answer, and was not ordered by the Court to do so, pertained to the following matters: experience and training of each appraiser; the size of the realty appraised, whether the same, larger or smaller than that taken; the fair market value of plaintiff's property immediately prior to and after the taking; the portion of damages attributed to severance; whether fair market value was determined by sales of comparable properties, business income or reproduction costs; details as to the criteria used in computing earnings and reproduction costs; other methods, if any, used to determine fair market value; and finally the State was requested to attach to the interrogatories a copy of each appraisal of plaintiff's property.

The State does not contest the fact that discovery is an integral part of our pretrial procedure and has been given a broad and liberal interpretation. Durocher's Ice Cream Co. v. Peirce Construction Co., 106 N.H. 293, 295, 210 A.2d 477. It objections to answering the submitted interrogatories are based mainly on the contention that the information sought is exempt from discovery as within the attorney-client privilege; the work product rule; the provisions of RSA 516:23 and Superior Court Rule 37; and on the ground that opinion evidence and its bases are not subjects of pretrial discovery.

'The common law rule that confidential communications between a client and an attorney are privileged and protected from inquiry is recognized and enforced in this jurisdiction'. Shelley v. Landry, 97 N.H. 27, 31, 79 A.2d 626, 629. 'The rules of evidence which would govern such privileged matters at trial govern such matters when they arise during discovery'. 23 Am.Jur.2d; Depositions and Discovery, s 169, p. 507; Monier v. Chamberlain, 66 Ill.App.2d 472, 213 N.E.2d 425 (1966). The general principles of the attorney-client privilege have been stated to be as follows: Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser unless the protection is waived by the client or his legal representatives. 8 Wigmore, Evidence, (McNaughton rev. 1961) ss. 2292, 2327-2329, pp. 554, 634-641. This privilege would apply to the State. See Radiant Burner Inc. v. American Gas Association, 7 Cir., 320 F.2d 314; Annot. 98 A.L.R.2d 241.

'(T)he essence of a privileged communication between attorney and client and likewise the basis of its exemption from discovery is its confidentiality.' Monier v. Chamberlain, 66 Ill.App.2d 472, 213 N.E.2d 425, 433 (1966); Shelley v. Landry, 97 N.H. 27, 31, 79 A.2d 626.

Oviously appraisals and reports thereof made by employees of the State or by independent appraisers to the Department of Public Works and Highways, or other such agency or body, in the regular course of the laying out of highways, would not come within the attorney-client privilege. McDuffey v. Boston & Maine R.R., 102 N.H. 179, 152 A.2d 606, 75 A.L.R.2d 872; Brink v. Multnomah County, 224 Or. 507, 517, 356 P.2d 536; McCormick, Evidence, s. 93, p. 188. Nor would the mere turning over of these documents to the Attorney General or some other lawyer for the State clothe them with that privilege. LaCoss v. Town of Lebanon, 78 N.H. 413, 414, 101 A. 364. The test to determine whether they are discoverable is whether their production could have been ordered before transfer to the attorney. Petition of Snow, 75 N.H. 7, 8, 70 A. 120; United States v. Judson, 322 F.2d 460, 467 (9th Cir. 1963); 8 Wigmore, Evidence, (McNaughton rev. 1961), s. 2307, pp. 592, 593. However appraisals and reports thereof confidentially made for the State at the request of an attorney from whom the State is seeking legal advice and confidentially communicated or turned over to the attorney would be privileged and not subject to discovery. Brink v. Multnomah County, supra, 224 Or. 516, 356 P.2d 536; 8 Wigmore, Evidence, supra, s. 2317, p. 618.

Even though information and documents may not be privileged from discovery under the attorney-client privilege, they still may be exempt under the work product of the lawyer doctrine. Work product can be defined as the result of an attorney's activities when those activities have been conducted with a view to pending to anticipated litigation. The lawyer's work must have formed an essential step in the procurement of the data which the opponent seeks, and he must have performed duties normally attended to by attorneys. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451; Scourtes v. Fred W. Albrecht Grocery Co., D.C., 15 F.R.D. 55; 50 Col.L.Rev. 1026, 1063. See State ex rel. Regan v. Superior Court, 102 N.H. 224, 227, 153 A.2d 403; State v. Superior Court, 106 N.H. 228, 231, 208 A.2d 832.

These two grounds for denial of pre-trial discovery have different purposes and characteristics. The purpose of the attorney-client privilege is to encourage full disclosure of information between an attorney and his client by guarantying the inviolability of their confidential communications. Monier v. Chamberlain, 66 Ill.App.2d 472, 213 N.E.2d 425, 433 (1966); 8 Wigmore, Evidence, (McNaughton rev. 1961) s. 2291, p. 545. Communications so privileged are not available on discovery nor are they admissible at the trial itself except on the client's consent. Kemeny v. Skorch, 22 Ill.App.2d 160, 164, 159 N.E.2d 489. This does not mean, however, that the observations and conclusions of the experts cannot be testified to and admitted in evidence as relevant facts on the issues being tried. People ex rel. Dept. of Public Works v. Donovan, 57 Cal.2d 346, 355, 19 Cal.Rptr 473, 369 P.2d 1; 14 Stan.L.Rev. 455, 469. The purpose for the protection accorded the work product of a lawyer is to preserve our adversary system of litigation by assuring an attorney that his private files shall, except in unusual circumstances (good cause or necessity), remain free from encroachments by his adversary. Frank C. Sparks Company v. Huber Baking Company, 10 Terry 267, 49 Del. 267, 269, 114 A.2d 657. Matters which constitute the work product of the lawyer may be subject to discovery for good cause shown, and if material and relevant may be admitted in evidence at the trial. Therrien v. Public Service Company, 99 N.H. 197, 199, 108 A.2d 48; Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 91 L.Ed. 451; Day v. Illinois Power Company, 50 Ill.App.2d 52, 199 N.E.2d 802 (1964); 23 Am.Jur.2d, Depositions and Discovery, s. 195, p. 552.

The work product of a lawyer consists generally of his 'mental impressions, conclusions, opinions or legal theories'. Hickman v. Taylor, supra, 329 U.S. 508, 67 S.Ct. at 392. It may consist of correspondence, memoranda, reports, such as those of real estate appraisers, exhibits, trial briefs, drafts of proposed pleadings, plans for presentation of proof, statements, and other matters, obtained by him or at his direction in the preparation of a pending or reasonably anticipated case on behalf of a client. Scourtes v. Fred W. Albrecht Grocery Co., D.C., 15 F.R.D. 55, 58; James, Civil Procedure, (1965) s. 6.9, p. 205; 74 Harv.L.Rev. 940, 1030-1031. See State ex rel. Regan v. Superior Court, 102 N.H. 224, 227, 153 A.2d 403; State v. Superior Court, 106 N.H. 228, 231, 208 A.2d 832.

However, unlike communications covered by the attorney-client privilege, the work product, as previously stated, is not beyond the pale of pretrial discovery. Such matters might be facts admissible in evidence at the trial or might give clues to the existence or location of relevant facts. Or they might be useful for purposes of impeachment or corroboration. If such relevant facts are unobtainable by other means, or are obtainable only under such conditions of hardship as would tend unfairly to prejudice the party seeking discovery, disclosure of work product may be compelled. Therrien v. New England Tel. & Tel. Company, 99 N.H. 197, 199, 200, 108 A.2d 48; Day v. Illinois Power Company, 50 Ill.App.2d 52, 199 N.E.2d 802; McCormick, Evidence, s. 100, pp. 206-208; 74 Harv.L.Rev. 940, 1033-1037. This becomes a matter for determination of the Trial Court in its discretion by considering the reasons which motivate the protection of the work product of the lawyer together with the desirability of giving every plaintiff and defendant an adequate opportunity to properly prepare his case before trial. Durocher's Ice Cream Co. v. Peirce Construction Co., 106 N.H. 293, 295, 210 A.2d 477; Reynolds v. Boston & Maine Transp. Company, 98 N.H. 251, 253, 98 A.2d 157, 37...