State ex rel. Burlington Northern R. Co. v. District Court of Eighth Judicial Dist. of State of Mont. In and For County of Cascade

• Decision Date: 19 September 1989
• Docket Number: No. 89-96,89-96
• Citation: 239 Mont. 207,779 P.2d 885,46 St.Rep. 1625
• Parties: STATE of Montana, ex rel., BURLINGTON NORTHERN RAILROAD COMPANY, Relator, v. The DISTRICT COURT OF the EIGHTH JUDICIAL DISTRICT OF the STATE OF MONTANA In and For the COUNTY OF CASCADE, Honorable Thomas M. McKittrick, Judge thereof, Respondent.
• Court: Montana Supreme Court

Page 885

779 P.2d 885

239 Mont. 207

STATE of Montana, ex rel., BURLINGTON NORTHERN RAILROAD COMPANY, Relator, v. The DISTRICT COURT OF the EIGHTH JUDICIAL DISTRICT OF the STATE OF MONTANA In and For the COUNTY OF CASCADE Honorable Thomas M. McKittrick, Judge thereof, Respondent.

No. 89-96.

Supreme Court of Montana.

Submitted July 7, 1989.

Decided Sept. 19, 1989.

James A. Robischon (argued) and Charles Dearden, Murphy, Robinson, Heckathorn & Phillips, Kalispell, for relator.

Terry Trieweiler (argued), Whitefish, for respondent.

WEBER, Justice.

This application for a writ of supervisory control arises from an order by the District Court of the Eighth Judicial District, Cascade County, Montana. We accept jurisdiction of this application, and after receipt of briefs and oral argument, we order supervisory control.

Burlington Northern Railroad Company (Burlington Northern) was ordered by the District Court to answer certain interrogatories and was enjoined from any further discovery until compliance with the order. The District Court further ordered Burlington Northern to pay plaintiff's attorney fees and costs in bringing the motion to compel discovery. We affirm in part and reverse in part.

This action arises from injuries received by Mr. Gilliland, an employee of Burlington Northern Railroad in Whitefish, Montana. On August 4, 1988, at approximately 2:50 a.m., while he was working as a utility foreman assisting a switch crew in switching operations, Mr. Gilliland was injured. A railroad car ran over him during a switching movement, causing a traumatic amputation of his right leg above the knee, and his right arm above the elbow.

On August 4, 1988, just hours after the accident, a senior claims representative of Burlington Northern, Mr. Dale Roos, interviewed the two crew members who were operating the train which hit Mr. Gilliland. Mr. Roos also interviewed the supervising yardmaster. There were no eye witnesses to the accident. Mr. Roos also photographed the accident site that same morning. This action was filed on August 26, 1988, pursuant to Federal Employers' Liability Act.

On August 30, 1988, plaintiff served interrogatories, requests for production, notice of deposition, and deposition subpoena duces tecum on defendant. This discovery included requests for defendant's entire investigative file, copies of Burlington Northern's safety rules and films, photographs of the accident site, investigative reports, and witness statements.

On October 12, 1988, plaintiff deposed several witnesses, including Mr. Roos, and the Burlington Northern employees whose statements had been taken immediately after the accident. The subpoena duces tecum, which had been issued to Mr. Roos, requested that he bring to the deposition his entire investigative file. The subpoena duces tecum specifically requested a number of items, including the photos of the accident site, and the witness statements he had taken. However, Mr. Roos did not bring the photographs to the deposition, stating rather that he had turned them over to defendant's lawyers. Mr. Roos did bring his file to the deposition, but the witness statements and a four-page list of safety materials with Mr. Roos' handwritten notations, had been removed. At the deposition he did produce handwritten statements of the Burlington Northern employees.

On October 17, 1988, defendant served interrogatories and requests for production on plaintiff. Plaintiff's deposition by Burlington Northern was scheduled for November 10, 1988. During the late afternoon of November 9, plaintiff's attorney called defendant to request that the photographs of the accident scene be brought to the deposition. Co-counsel of the attorney who would be taking plaintiff's deposition agreed that the photos would be brought to the deposition.

On November 10 the plaintiff and counsel for both parties arrived for the deposition. Plaintiff's counsel requested that plaintiff be allowed to view the photos prior to the commencement of the deposition. Counsel for Burlington Northern stated that he had not been informed that the prior viewing of the photographs was a condition to plaintiff's deposition. Counsel for Burlington Northern agreed to allow plaintiff to view the photos during a recess or after the deposition had been concluded, but he refused to delay commencement of the deposition while the plaintiff viewed the 49 photographs in question. Plaintiff's counsel refused to begin the deposition before the plaintiff had the opportunity to view the photographs of the accident site. As a result of this disagreement, plaintiff's counsel would not allow the deposition to proceed. Counsel for Burlington Northern emphasized that he would subpoena plaintiff for a future deposition.

On the day following the aborted deposition plaintiff filed a motion to compel discovery and for sanctions. Plaintiff's motion to compel requested that the court order production of defendant's entire investigative file, disclosure of the identity of all experts consulted by defendant, copies of Burlington Northern safety rules and films, all photographs of the accident scene taken the morning of the injury, and all statements of crew members, employees, or witnesses. The motion included a request that defendant be prohibited from conducting any further discovery until ten days after compliance with the order, and also included a request for expenses incurred in bringing the motion to compel. On December 2, 1988, defendant filed a motion to compel discovery of answers to interrogatories and requests for production which had been served on plaintiff on October 17, 1988, but had not been answered. Defendant also requested a protective order regarding the identities of the non-witness experts, the witness statements obtained by Mr. Roos, the identity of Burlington Northern employees whose earnings were requested, and all privileged information contained in its file.

On December 5, 1988, the court heard argument on these motions and ordered further briefing on whether defendant should be compelled to disclose identities of non-witness experts and witness statements. On February 10, 1989, the court issued an order compelling defendant to identify its non-witness experts and to disclose the witness statements taken by Mr. Roos. The court granted a partial protective order to defendant by ordering that certain employee earnings be disclosed, but keeping the employee identities confidential. While the court ordered that the photographs and catalog of safety files be produced, these items had already been produced by defendant on December 13, 1989. The court's order also restrained defendant from pursuing any further discovery until ten days after it had complied with plaintiff's discovery requests, and ordered defendant to pay $7,250 in attorney fees and $170 in costs to plaintiff. Defendant seeks relief from this order through a writ of supervisory control.

I

Is issuance of a writ of supervisory control appropriate regarding a motion to compel discovery?

Defendant contends that a writ of supervisory control should issue in the present case because the District Court has ordered production of privileged material. Defendant contends that because it asserted its right to withhold privileged work product it is now being prevented from conducting any discovery. It contends that if it is required to disclose material which is privileged then "the harm is complete and cannot be rectified by appeal." Thus there is no adequate remedy.

A discovery order is interlocutory and normally not appealable, and this Court has expressed disfavor in granting a writ in the context of a discovery issue. State ex rel. Guar. Ins. v. District Court (Mont.1981), 634 P.2d 648, 38 St.Rep. 1682.

However, this Court has issued a writ in two significant cases involving discovery issues. In Kuiper v. Dist. Court of Eighth Judicial Dist. (Mont 1981), 632 P.2d 694, 38 St.Rep. 1288, a writ issued to determine whether the District Court had properly granted a protective order. Kuiper involved free speech issues and public policy considerations in that the plaintiff alleged Goodyear Tire Company had covered up a defect in a product. Kuiper also involved issues of whether certain material was work product.

In a second case, Jaap v. District Court of Eighth Judicial District (Mont.1981), 623 P.2d 1389, 38 St.Rep. 280, this Court granted a writ because the District Court had exceeded its jurisdiction by allowing defendant's attorney to privately interview plaintiff's physicians. In Jaap the method of discovery was incorrect.

In accepting jurisdiction to resolve a discovery dispute, the court in Nat. Farmers Un. Prop. & Cas. v. Denver D.C. (Colo.1986), 718 P.2d 1044, 1046 stated Initially we note that orders pertaining to discovery are interlocutory in character and generally are not reviewable in an original proceeding. However, we will exercise our original jurisdiction when an order will place a party at a significant disadvantage in litigating the merits of the case.

Regarding the appropriateness of supervisory control, in Continental Oil v. Elks Nat. Foundation (Mont.1989), 767 P.2d 1324, 1326, 46 St.Rep. 121, 123, this Court stated:

Supervisory control is proper to control the course of litigation when the lower court has made a mistake of law or willfully disregarded the law so that a gross injustice is done and there is no adequate remedy by appeal; also, to prevent extended and needless litigation. (Citation omitted.)

The present case involved discovery of potentially privileged material. The discoverability of the identity of non-witness experts presented an issue of first impression in Montana. The sanctions imposed on defendant are severe and exceed the authority of Rule 37, as will be discussed further. We conclude that the order would place the defendant at a significant disadvantage in litigating the merits of the case and therefore accept...