Schaffer v. Rogers

• Decision Date: 13 February 1985
• Docket Number: No. 83-1287,83-1287
• Citation: 362 N.W.2d 552
• Parties: Calvin SCHAFFER, James Sutherlin, and Mary L. Sutherlin, Appellees, v. Larry ROGERS, Stanley Sherwood and City of Des Moines, Appellants.
• Court: Iowa Supreme Court

Page 552

362 N.W.2d 552

Calvin SCHAFFER, James Sutherlin, and Mary L. Sutherlin, Appellees, v. Larry ROGERS, Stanley Sherwood and City of Des Moines, Appellants.

No. 83-1287.

Supreme Court of Iowa.

Feb. 13, 1985.

J.M. Sullivan, Asst. City Atty., Des Moines, for appellants.

Bernard J. Connolly, Jr., and Thomas M. Werner, Des Moines, for appellees.

Considered by REYNOLDSON, C.J., and McGIVERIN, LARSON, SCHULTZ, and WOLLE, JJ.

McGIVERIN, Justice.

Defendants Larry Rogers, Stanley Sherwood, and the City of Des Moines appeal with our permission in a civil tort action from an interlocutory order directing the production, for discovery purposes, of documents prepared by the Internal Affairs Unit of the Des Moines police department. We reverse.

On appeal, defendants contend that the materials that plaintiffs seek to discover are within the qualified work product privilege established by Iowa R.Civ.P. 122(c), and that plaintiffs have not made the showing required by that rule to justify such discovery. We agree.

On July 31, 1981, plaintiffs Calvin Schaffer, James Sutherlin and Mary L. Sutherlin filed a civil action for damages against defendants Rogers and Sherwood and their employer, the City of Des Moines. The petition alleged, inter alia, that Rogers and Sherwood, in their capacities as Des Moines police officers, had on April 1, 1981, committed assault and battery against plaintiffs and violated their constitutional and statutory rights. Defendants filed an answer denying plaintiffs' claims.

In the course of discovery, plaintiffs inquired by interrogatories under Iowa R.Civ.P. 126 whether defendants had taken any statements from witnesses regarding the events of April 1, and whether any investigation concerning those events had been conducted. In their answers filed on January 8, 1982, defendants stated that the Internal Affairs Unit (IAU) of the Des Moines police department had conducted an investigation on April 10, 1981, and was in possession of statements taken from plaintiffs James Sutherlin and Mary L. Sutherlin, defendants Rogers and Sherwood, and a civilian witness named Raymond Serra.

Plaintiffs were represented by an attorney as early as April 8, 1981. However, they apparently had made no efforts to obtain statements from Rogers, Sherwood, or Serra, or to interview them, and requested under Iowa R.Civ.P. 129-30 that defendants produce the witness statements obtained by the IAU and a copy of the IAU's investigative report. Defendants made the statements of James and Mary Sutherlin available to plaintiffs, but declined to produce the statements of Rogers, Sherwood, or Serra, or the IAU's report, on the grounds that those materials were protected from discovery under Iowa R.Civ.P. 122(c). Defendants maintained that the statements and report were "prepared in anticipation of litigation" within the meaning of rule 122(c) and that plaintiffs had not shown, pursuant to that rule, that they had substantial need of those materials for the preparation of their case and that they were unable without undue hardship to obtain the substantial equivalent of those materials by other means.

Plaintiffs moved under Iowa R.Civ.P. 134 for an order compelling production of the materials. After a hearing, the district court granted the motion. The court ruled (1) that the materials were not within the scope of rule 122(c) because they were not "prepared in anticipation of litigation" within the meaning of that rule, and (2) that even if the materials were considered as having been prepared in anticipation of litigation, plaintiffs had made a sufficient showing under the rule to justify discovery of the materials.

Pursuant to Iowa R.App.P. 2, defendants applied to this court for permission to appeal the district court's ruling in advance of final judgment. The application was granted.

I. Were the materials in question "prepared in anticipation of litigation" within the meaning of rule 122(c)? Iowa R.Civ.P. 122(a) generally provides for liberal discovery regarding matters relevant to the subject matter of a civil action. However, rule 122(c) provides in relevant part:

... a party may obtain discovery of documents and tangible things ... prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative ... only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

The district court ruled that the statements obtained by the IAU, and the IAU's report, were not prepared in anticipation of litigation and so were discoverable without a special showing by plaintiffs.

"A trial court has wide discretion in ruling upon the discoverable nature of requested information and will not be reversed unless an abuse of discretion is found." Ashmead v. Harris, 336 N.W.2d 197, 199 (Iowa 1983). A ruling founded on an incorrect interpretation of rule 122(c) can constitute an abuse of discretion. Id.

In this case, the court based its ruling as to whether the materials in question were "prepared in anticipation of litigation" on its finding that the IAU investigation was conducted in the ordinary course of police department business. Relying on the advisory committee's note to Fed.R.Civ.P. 26(b)(3), which contains the same discovery limitation as Iowa R.Civ.P. 122(c), the court held that the materials assembled in the course of the investigation were, therefore, not within the scope of rule 122(c). See Proposed Amendments to the Federal Rules of Civil Procedure Relating to Discovery, 48 F.R.D. 487, 501 ("Materials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other nonlitigation purposes are not under the qualified immunity provided by this subsection.")

Of course, the finding that the IAU's investigation was conducted as a matter of routine business does not compel the conclusion that its documents cannot be privileged under rule 122(c). In Ashmead v. Harris, 336 N.W.2d 197, 200 (Iowa 1983), we said of an insurer's accident investigation:

It does not matter that the investigation is routine. Even a routine investigation may be made in anticipation of litigation. [Citations.] Thus a document prepared in the regular course of business may be prepared in anticipation of litigation when the party's business is to prepare for litigation.

The district court distinguished Ashmead by stating that the business of the IAU in conducting an investigation is not to prepare for litigation. This finding was based on testimony by two IAU officers to the effect that IAU investigations are conducted not only on behalf of the city's legal department to prepare for litigation, but also for the purposes of determining whether the incident under investigation warrants imposition of disciplinary sanctions or bringing of criminal charges against a police officer. The court concluded from this that the purpose of the IAU's investigation of the events of April 1, 1981, was not to prepare for litigation arising from those events.

We believe this conclusion is based on an erroneous understanding of the scope of Ashmead and of rule 122(c). The fact that an investigative body regularly conducts investigations for a variety of possible future purposes does not compel the conclusion that the primary purpose of a particular investigation was not to prepare for litigation. The IAU should not automatically be denied the protection of rule 122(c) for all its investigative materials simply because some of its investigations are not conducted in anticipation of litigation. We reiterate the standard adopted in Ashmead that the determinative issue is whether the primary motivating purpose for the creation of the materials in question was to prepare for litigation. 336 N.W.2d at 201.

In this case, the evidence showed that at the time and at the scene of the April 1 incident plaintiff Schaffer threatened to complain against defendants Rogers and Sherwood and took down their names and badge numbers. The day after the incident, plaintiffs James...