Therrien v. Public Service Co.

• Citation: 108 A.2d 48,99 N.H. 197
• Parties: Norma THERRIEN v. PUBLIC SERVICE COMPANY of N. H. Norma THERRIEN v. NEW ENGLAND TELEPHONE & TELEGRAPH CO.
• Decision Date: 30 September 1954
• Court: Supreme Court of New Hampshire

Page 48

108 A.2d 48

99 N.H. 197

Norma THERRIEN v. PUBLIC SERVICE COMPANY of N. H.

Norma THERRIEN v. NEW ENGLAND TELEPHONE & TELEGRAPH CO.

Supreme Court of New Hampshire.

Argued Sept. 7, 1954.

Decided Sept. 30, 1954.

Devine & Millimet, Manchester, for plaintiff.

Burns, Calderwood & Bryant and Robert E. Hinchey, Dover, for Hatfield, and defendant New England Tel. & Tel. Co.

Sulloway, Jones, Hollis & Godfrey, Concord, for defendant Public Service Co. of New Hampshire, furnished no brief.

DUNCAN, Justice.

The principal complaint made with respect to the orders of the Superior Court appears to be directed toward those which require production by Hatfield of the company file, and by the company of statements taken from witnesses. It is asserted that names and addresses of witnesses have been furnished, that the plaintiff has taken one or more depositions, and that the information desired is available to the plaintiff direct from the witnesses themselves. This argument was considered by the Superior Court, and its order, supported by evidence that the plaintiff could not locate one or more of the witnesses and that others reside without the jurisdiction, must be deemed to have been properly entered in the exercise of the Court's discretion. Ingram v Boston & Maine Railroad, 89 N.H. 277, 279, 197 A. 822. The order did not extend to the requested production of the company's entire file and all information therein, nor was a blanket order issued requiring the witness to answer all material questions regardless of form or whether hearsay was called for. See Staargaard v. Public Service Company, 96 N.H. 17, 69 A.2d 4.

The circumstance that the documents are beyond the jurisdiction presents no obstacle, Davis v. Central New Hampshire Power Company, 79 N.H. 377, 109 A. 263, and the mere fact that they may not be admissible in evidence does not preclude the order. See Staargaard v. Public Service Company, supra, 96 N.H. 18, 69 A.2d 4, 5. 'Such written statements and documents might, under certain circumstances, be admissible in evidence or give clues as to the existence or location of relevant facts. Or they might be useful for purposes of impeachment or corroboration. And production might be justified where the witnesses are no longer available or can be reached only with difficulty.' Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 394, 91 L.Ed. 451.

The excepting parties further urge that since they are not parties to the pending action, a bill for discovery will not lie. Whatever may have been the common law elsewhere in this regard (see VI Wig. Ev., (3rd ed.), §§ 1856d, 1857, 1859f) the rule does not prevail in this jurisdiction. The considerations which led the Court in LaCoss v. Town of Lebanon, 78 N.H. 413, 417, 101 A. 364, to hold that no statutory authority was needed to empower the court to require a party to discover apply with equal force and some greater reason to a non-party. R.L. c. 392, § 23 affords to a party a limited exemption from discovery on deposition, which does not extend to third persons. Bradley's Petition, 71 N.H. 54, 51 A. 264. See Reynolds v. Boston and Maine Transportation Company, 98 N.H. 251, 98 A.2d 157. Witnesses may properly be required to produce non-privileged information at a trial, Boston & Maine Railroad v. State, 75 N.H. 513, 77 A. 996, 31 L.R.A.,N.S., 539; Marceau v. Orange Realty Inc., 97 N.H. 497, 92 A.2d 656, and for the reasons set forth in the LaCoss case may be compelled to do likewise in advance of trial. Precedent for such an order may be found in Lefebvre v. Somersworth Shoe Co., 93 N.H. 354, 356, 41 A.2d 924, and there is no indication that the relief there granted in any way rested upon the circumstance that the desired information ordered to be discovered originated with a party to the pending action. See also, Drake v. Bowles, 97 N.H. 471, 92 A.2d 161.

We are urged to extend to statements procured by the company's claim investigator the rule with respect to the "work product of the lawyer", established by Hickman v. Taylor, supra, 329 U.S. 511, 67 S.Ct. 393, under the Federal Rules of Civil Procedure, 28 U.S.C.A. Those rules are not binding upon our courts. The holding of the decision was restricted to denial of an order for inspection of statements obtained by the attorney for the defendant in preparing for trial, where such inspection was sought as a matter of right and without showing good cause. The opinion of the Court stated: 'We do not mean to say that all written materials obtained or prepared by an adversary's counsel with an eye toward litigation are necessarily free from discovery in all cases.' Hickman v. Taylor, supra, 329 U.S. 511, 67 S.Ct. 394. Subsequent decisions of the Federal Courts have shown reluctance to extend the rule to the work product of claim agents insurers and investigators. See IV Moore's Federal Practice (2nd...