Willett v. General Elec. Co.

Decision Date29 June 1973
Docket NumberNo. 6616,6616
Citation113 N.H. 358,306 A.2d 789
PartiesReginald WILLETT et al. v. GENERAL ELECTRIC COMPANY et al.
CourtNew Hampshire Supreme Court

Fisher, Parsons, Moran & Temple, Dover (Robert E. Fisher, Dover, orally), for plaintiffs.

Burns, Bryant, Hinchey, Cox & Shea and James F. Early, Dover (Mr. Early orally), for defendant General Electric Co. KENISON, Chief Justice.

The issue in this products liability case is whether the defendant General Electric Company may discover the reports of all plaintiffs' experts who examined the refrigerator which allegedly exploded, regardless of whether plaintiffs intend to use the reports at trial or whether they are favorable or unfavorable to plaintiffs' case. General Electric filed a motion for discovery in superior court requesting the court to permit the defendant to examine the refrigerator and to '(d)ecree that plaintiffs' attorney furnish your defendant with access to or copies of all reports and/or memoranda, past, present, and future, either in the possession of plaintiffs' attorney or the 'experts' used by the plaintiffs in examining said refrigerator.' The Court (Mullavey, J.) granted this motion, and the plaintiffs' exception thereto was transferred to this court.

Plaintiffs contend that they should not be compelled to release to the defendant the reports of every expert consulted because such reports represent the work product of plaintiffs' attorney and are thus beyond the reach of discovery. The position of the defendant in seeking discovery of the reports is that the condition of the refrigerator may have changed since the inspections of plaintiffs' experts and that all of their reports should thus be discoverable in order to 'contribute to the orderly dispatch of judicial business.' Riddle Spring Realty Co. v. State, 107 N.H. 271, 278, 220 A.2d 751, 753 (1966); RSA 491:App. R 60(e) (Supp.1972).

Recent decisions of this court have stressed the importance of broad pretrial discovery. E.g., Calderwood v. Calderwood, 112 N.H. 355, 296 A.2d 910 (1972); Scontsas v. Citizens Ins. Co., 109 N.H. 386, 253 A.2d 831 (1969); Riddle Spring Realty Co. v. State, supra; McDuffey v. Boston & Maine R.R., 102 N.H. 179, 152 A.2d 606 (1959). 'There are, however, competing policies which result in imposing some limits on discovery . . ..' James, Civil Procedure § 6.8, at 200 (1965). The scope of discovery is generally limited to relevant material that is 'not privileged.' Wright & Miller, Federal Practice and Procedure: Civil § 2016 (1970). We have recognized in previous cases that the work product of a lawyer is privileged material. E.g., Riddle Spring Realty Co. v. State, 107 N.H. 271, 220 A.2d 751 (1966). This is necessary '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.' Id. at 275, 220 A.2d at 756; accord, James, Civil Procedure § 6.9, at 204-05 (1965).

Reports obtained by a lawyer from his experts are almost always considered to be part of his work product. The reasons are clear. 'Reports from experts present peculiar problems. In the first place they are more likely than ordinary statements to reflect questions and lines of inquiry suggested by the lawyer. Moreover, the expert witness's very relationship to the case usually stems from the choice of the party and his attorney who hire such a witness to become associated with them in examining certain aspects of the case and advising what positions the party should take with regard to them. There seems to be fairly good reason, therefore, for treating these reports as part of the work product of the lawyer in most cases.' James, Civil Procedure § 6.9, at 207-08 (1965); see 4 Moore, Federal Practice 26.66 (2d rev. ed. 1972); Wright & Miller, supra § 2029.

Categorizing expert reports as work product, however, does not automatically insulate them from discovery. If '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.' Riddle Spring Realty Co. v. State, 107 N.H. 271, 275, 220 A.2d 751, 756 (1966); Muder v. Bentley, 109 N.H. 71, 72, 242 A.2d 396 (1968). A party may thus discover as a matter of course the names of those persons his...

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7 cases
  • Johnston by Johnston v. Lynch, 88-058
    • United States
    • Supreme Court of New Hampshire
    • April 30, 1990
    ...Experts' reports obtained by a lawyer are almost always considered to be part of his or her work product. Willett v. General Elec. Co., 113 N.H. 358, 359, 306 A.2d 789, 790 (1973). However, this does not automatically protect them from discovery if "relevant facts are unobtainable by other ......
  • Hydraform Products Corp. v. American Steel & Aluminum Corp.
    • United States
    • Supreme Court of New Hampshire
    • August 16, 1985
    ...was Hydraform's failure to disclose in advance of trial that Mr. Choate would offer opinion testimony. In Willett v. General Elec. Co., 113 N.H. 358, 360, 306 A.2d 789, 791 (1973) we held that as a matter of course a party may discover (a) the names of those whom his adversary intends to ca......
  • State v. Drewry
    • United States
    • Supreme Court of New Hampshire
    • June 30, 1995
    ...obtained by a lawyer from his experts are almost always considered to be part of his work product." Willett v. General Elec. Co., 113 N.H. 358, 359, 306 A.2d 789, 790 (1973). We reasoned [r]eports from experts present peculiar problems. In the first place they are more likely than ordinary ......
  • Sawyer v. Boufford
    • United States
    • Supreme Court of New Hampshire
    • November 30, 1973
    ...settlement. Id. Recent decisions of this court have stressed the importance of broad pretrial discovery. Willett v. General Elec. Co., 113 N.H. --, --, 306 A.2d 789, 790 (1973); Workman v. Public Serv. Co. of N.H., 113 N.H. --, --, 308 A.2d 540 (1973). However, there are competing policies ......
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