Sanders v. Ayrhart

• Decision Date: 28 July 1965
• Docket Number: No. 9408,9408
• Citation: 404 P.2d 589,89 Idaho 302
• Parties: Floyd V. SANDERS, Plaintiff-Respondent, v. Walter Earl AYRHART, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 589

404 P.2d 589

89 Idaho 302

Floyd V. SANDERS, Plaintiff-Respondent, v. Walter Earl AYRHART, Defendant-Appellant.

No. 9408.

Supreme Court of Idaho.

July 28, 1965.

Benoit & Benoit, Twin Falls, for appellant.

Murphy, Schwartz & Cunningham, Shoshone, Richard H. Seeley, Jerome, for respondent.

Elam, Burke, Jeppesen & Evans, Boise, Merrill & Merrill, Pocatello, Hepworth & Nungester, Buhl, Kramer, Walker, Pope & Plankey, Twin Falls, amici curiae.

McQUADE, Chief Justice.

On or about June 12, 1962, while driving his automobile in the State of California, defendant was involved in an automobile collision. Plaintiff's wife, who was a passenger in defendant's automobile at the time, was killed. Plaintiff commenced this action for damages for her death.

Attorneys for plaintiff served written interrogatories upon the defendant, which interrogatories were calculated to elicit information as to: (1) the coverage and limits of defendant's liability insurance policy, if one existed; (2) names and addresses of any witnesses to the accident; (3) any investigation of the accident made by the defendant or anyone on his behalf; (4) statements made by witnesses to such investigator; (5) photographs taken at the scene of the accident or of the automobiles involved. Defendant objected to these interrogatories. Upon a hearing of these objections, they were overruled by the trial court. The day after this hearing plaintiff's attorney took defendant's deposition, wherein oral interrogatories similar to the written interrogatories were directed to the defendant. Upon advise of his attorney, the defendant refused to answer. There was no showing at that time by the plaintiff as to undue hardship or an injustice (I.R.C.P. 26[b]).

Plaintiff then moved that defendant be compelled to answer both the written and oral interrogatories. After a hearing the trial court issued an order compelling defendant to answer the interrogatories. The defendant, again on advice of counsel, refused to comply with said order. The trial court thereupon held the defendant in contempt of court.

From the order of the district court adjudging defendant in contempt of court, this appeal is taken.

The first issue presented by the defendant's assignments of error is whether defendant's liability insurance coverage is discoverable under Idaho Rules of Civil Procedure. Plaintiff sought by interrogatories Nos. 27 and 29 to elicit information to determine if defendant has casualty insurance and if so, the limitations thereof. I.R.C.P. 33, ¹ inter alia, provides that the interrogatories 'may relate to any matters which can be inquired into under rule 26(b) ².' It is well settled that under Federal Rule of Civil Procedure 26(b), upon which I.R.C.P. 26(b) is patterned, relevancy to the subject matter is the basic test as to discoverability. 2A Barron and Holtzoff, Federal Practice and Procedure, § 647 (Wright ed.); 4 Moore, Federal Practice, p. 1175 (2d ed.), and cases cited therein. Therefore, although the discovery rules have liberalized the scope of examination before trial, we follow the rule that relevancy is the test, whether a party may be required to answer questions propounded by an opposing party.

The cases upholding discoverability of insurance coverage do so in the main on the basis that relevancy under the discovery rules has an expanded meaning and since knowledge of the policy limits by the plaintiff would lead to more purposeful discussions of settlement such knowledge is relevant to the subject matter. Novak v. Good Will Grange No. 127, Patrons of Husbandry, Inc., 28 F.R.D. 394 (D.Conn.1961); Johanek v. Aberle, 27 F.R.D. 272 (D.Mont.1961); Schwentner v. White, 199 F.Supp. 710 (D.Mont.1961); Superior Ins. Co. v. Superior Court, 37 Cal.2d 749, 235 P.2d 833 (1951); Laddon v. Superior Court, 167 Cal.App.2d 391, 334 P.2d 638 (1959); Maddox v. Grauman, 265 S.W.2d 939, 41 A.L.R.2d 964 (Ky.1954); People ex rel. Terry v. Fisher, 12 Ill.2d 231, 145 N.E.2d 588 (1957); Lucas v. District Court, 140 Colo. 510, 345 P.2d 1064 (1959). Those cases denying discoverability do so on the basis that it is not 'relevant to the subject-matter.' McClure v. Boeger, 105 F.Supp. 612 (E.D.Pa.1952); Flynn v. Williams, 30 F.R.D. 66 (D.Conn.1958); Langlois v. Allen, 30 F.R.D. 67 (D.Conn.1962); Jeppesen v. Swanson, 243 Minn. 547, 68 N.W.2d 649 (1955); Bean v. Best, 76 S.D. 462, 80 N.W.2d 565 (1957); Brooks v. Owens, 97 So.2d 693 (Fla.1957); Di Pietruntonio v. Superior Court, 84 Ariz. 291, 327 P.2d 746 (1958); State ex rel. Bush v. Elliott, 363 S.W.2d 631 (Mo.1963); State ex rel. Hersman v. District Court, 142 Mont. 139, 381 P.2d 799 (1963).

We feel these latter cases present the better reasoning and we are particularly impressed with the following language from Jeffesen v. Swanson, supra:

'It would seem to us that, even though the discovery is not to be limited to facts which may be admissible as evidence the ultimate goal is to ascertain facts or information which may be used for proof or defense of an action. Such information may be discovered by leads from other discoverable information. The purpose of the discovery rules is to take the surprise out of trials of cases so that all relevant facts and information pertaining to the action may be ascertained in advance of trial. Where it is sought to discover information which can have no possible bearing on the determination of the action on its merits, it can hardly be within the rule. It is not intended to supply information for the personal use of a litigant that has no connection with the determination of the issues involved in the action on their merits. Balazs v. Anderson, D.C.N.D.Ohio, 77 F.Supp. 612.' 68 N.W.2d at page 656.

While acknowledging the practical utility that the knowledge of insurance coverage offers a plaintiff in evaluating his claim, the court in the Jeppesen case points out:

'Under the guise of liberal construction, we should not emasculate the rules by permitting something which never was intended or is not within the declared objects for which they were adopted. Neither should expedience or the desire to dispose of lawsuits without trial, however desirable that may be from the standpoint of relieving congested calendars, be permitted to cause us to lose sight of the limitations of the discovery rules or the boundaries beyond which we should not go. If, perchance we have the power under the enabling act to extend the discovery rules to permit discovery of information desired for the sole purpose of encouraging or assisting in negotiations for settlement of tort claims, it would be far better to amend the rules so as to state what may and what may not be done in that field than to stretch the present discovery rules so as to accomplish something which the language of the rules does not permit.' At page 658.

The second issue presented by this appeal involves the discoverability of statements of witnesses obtained by someone acting on behalf of the defendant. There appears to be some confusion on the part of the trial court and the attorneys as to which was the proper rule under which plaintiff should have proceeded. Defendant contended that inasmuch as plaintiff was seeking copies of written statements in defendant's possession, custody or control, I.R.C.P. 34 ³ was the proper rule since it pertains to inspection of documents, papers, books, accounts, letters, photographs or objects or tangible things. An examination of the rules shows that I.R.C.P. 26(b) has a specific provision pertaining to 'writings' prepared in anticipation of litigation. The scope of examination under I.R.C.P. 33 is the same as that under I.R.C.P. 26(b). Plaintiff was correct in proceeding under I.R.C.P. 33; however, the propriety of his interrogatories must be determined by the provisions of I.R.C.P. 26(b).

I.R.C.P. 26(b) differs from its federal rule counterpart in that the restrictive or protective amendment to Federal Rule 30(b), suggested by the Advisory Committee ⁴ in 1946, was incorporated into it. The pertinent part of I.R.C.P. 26(b) reads as follows:

'The deponent shall not be required to produce or submit for inspection any writing obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent in anticipation of litigation and in preparation for trial unless the court otherwise order on the ground that a denial of production or inspection will result in an injustice or undue hardship; nor shall the deponent be required to produce or submit for inspection any part of a writing which reflects an attorney's mental impression, conclusions, opinions, or legal theories, or, except as provided by rule 35 the conclusions of an expert.'

The effect of this provision is to extend a qualified immunity to any writing obtained or prepared by the adverse party, his attorney, surety, indemnitor or agent in anticipation or in preparation for trial. In addition it provides for immunity for the mental impressions, conclusions, opinions, or legal theories of an attorney and conclusions of experts. In determining the extent of this qualified immunity, the key words are 'injustice or undue hardship.' Ordinarily the rules allow discovery as a matter of course without any showing or an order of the court ⁵ except for I.R.C.P. 34, which requires a showing of good cause, and the provision of I.R.C.P. 26(b), which requires a showing of injustice or undue hardship. It is for us to construe what the Advisory Committee intended when we adopted the phrase 'injustice or undue hardship.'

In Dean v. Superior Court, 84 Ariz. 104, 324 P.2d 764, at page 770, 73 A.L.R.2d 1 (1958), that court, in discussing good cause as required by Rule 34, stated:

'We think the better view is that if the witnesses themselves are available to the party and can be interrogated or examined by him, there will ordinarily be no occasion for ordering production of their statements. Hence, a showing will usually be required that the...