Wright v. Jeep Corp.

• Decision Date: 30 September 1982
• Docket Number: Civ. A. No. 82-001.
• Parties: Leslie Allen WRIGHT, Plaintiff, v. JEEP CORPORATION, et al., Defendants, Richard G. Snyder, Non-Party Respondent.
• Court: U.S. District Court — Western District of Michigan

547 F. Supp. 871

Leslie Allen WRIGHT, Plaintiff, v. JEEP CORPORATION, et al., Defendants Richard G. Snyder, Non-Party Respondent.

Civ. A. No. 82-001.

United States District Court, E. D. Michigan, S. D.

September 30, 1982.

Peter A. Davis, Davis & Fajen, Ann Arbor, Mich., for plaintiff.

James W. Goss, Bloomfield Hills, Mich., for defendants.

MEMORANDUM OPINION AND ORDER

JOINER, District Judge.

This case deals for the first time with the conflict between the need for evidence in the administration of justice and the desire of a researcher not connected with the litigants to avoid being imposed upon at the whim of litigants. It deals with a person who has become a public figure as a result of a research project yet wants to remain essentially anonymous so far as the administration of justice is concerned. Finally, it deals with an effort by this court to provide information essential to the fair determination of litigation and to protect researchers who have that information and who might otherwise be burdened.

All of this comes before the court on appeal from the United States Magistrate's order to quash a subpoena duces tecum to a non-party expert.

FACTS

Dr. Richard Snyder, the non-party respondent, is a professor and research scientist at the Highway Safety Institute of the University of Michigan. He is the principal author of the 1980, 152 page report, "On-Road Crash Experience of Utility Vehicles", published by the Institute. The report was the result of a research project and study by the Highway Safety Institute for the Insurance Institute for Highway Safety. The study concludes that utility vehicles, particularly the Jeep CJ-5, experience a disproportionately high roll over rate in accidents.

Jeep Corporation, a defendant in the above personal injury action, seeks to subpoena

any and all research data, memoranda, drafts, correspondence, lab notes, reports, calculations, moving pictures, photographs, slides, statements and the like pertaining to the on-road crash experience of utility vehicles study by the Highway Safety Research Institute of the University of Michigan for the Insurance Institute for Highway Safety in which Prof. Snyder participated.

It is Jeep's position that the study is likely to be used by the plaintiff in the action and that the material requested in the subpoena is necessary to judge the validity of the conclusions reported and for the defense in that action.

Professor Snyder objects to the subpoena on the following grounds:

1. He is not a party to the lawsuit, he has no first-hand knowledge of the accident in question, and he has not been retained as an expert by either party.

2. He has an absolute right not to be compelled to testify as an unwilling expert.

3. He has a first amendment right as a researcher and writer that protects him from testifying against his will.

4. He has an academic privilege to refuse to testify.

5. Compliance with the subpoena would be extremely burdensome and forced testimony would have a chilling effect on researchers, scientists and educators.

6. The documents sought are privileged and confidential.

7. Fed.R.Civ. 706(a) requires that Prof. Snyder consent before testifying.

8. He was improperly subpoenaed to appear for deposition in Oakland County when he resides in Washtenaw County and he was not properly served.

The magistrate granted the motion to quash the subpoena relying on a decision rendered in favor of Professor Snyder involving the same issues. Buchanan v. American Motors Corp., Misc. No. 81-436 (E.D.Mich. Oct. 23, 1981). The decision in Buchanan is currently being appealed to the Court of Appeals for the Sixth Circuit. Because of the importance of the issues involved, this court chose to explore fully the matter in the present action.

DISCUSSION

First of all, to maintain the system of justice used in this country, it is necessary that all relevant evidence be made available for the resolution of disputes, unless there are public policy reasons for excluding evidence in specific situations. "'The public... has a right to every man's evidence,' except for those persons protected by a constitutional, common-law, or statutory privilege." United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1973) (quoting Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 2660, 33 L.Ed.2d 626 (1972)). Privileges are designed to protect "weighty and legitimate competing interests." Id. For example, the attorney-client privilege exists because of society's greater interest that a client reveal all pertinent information to the attorney handling the case. Full disclosure to the attorney enables the attorney to seek the most appropriate solution to the problem. The interest in the attorney's full knowledge of the facts is so compelling that it weighs against society's "right to every man's evidence" and the attorney-client privilege protects the former to the detriment of the latter. The question before the court is whether there are public policy reasons that would exempt Professor Snyder from providing the material requested in this case.

At the outset it is important to understand the relationship between the conclusions contained in research reports and the underlying data from which these conclusions are drawn. Researchers accumulate basic data from an infinite number of sources. Sometimes it has been acquired by others and is used by the researcher. Sometimes it is acquired specifically for this research project. Sometimes and usually both sources are used. The data are analyzed, compared and contrasted and from it all, the researcher draws conclusions using his analysis to document and support his report which in turn supports his conclusions. The value of the conclusions turns on the quality of the data and the methods used by the researcher in his analysis of that data as well as the skill and perception of the researcher.

So if the conclusions or end product of a research effort is to be fairly tested, the underlying data must be available to others equally skilled and perceptive. Here a researcher does not want to testify about his research and asks the court to prohibit a litigant from acquiring his underlying data.

Refusal Based on Court Rule

Professor Snyder claims a right to refuse to give or provide evidence on the ground that 1) he is not a retained expert and 2) as an expert, he has the right to refuse to testify. These claims embrace objections 1, 2, and 7 as stated above. Although this problem is presented in context of a discovery subpoena, much of what is said in ruling on this discovery matter is predicated on a consideration of the relevancy of the evidence at trial. The discovery issue is controlled by Fed.R.Civ.P. 26(b)(1): "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action whether it relates to the claim or defense of the party seeking discovery. ..." (emphasis added). There is a high probability that the results of Professor Snyder's research will be used at trial by plaintiff, either through the testimony of other experts or as a result of the application of Fed.R.Evid. 803(18), and it is important for the parties to learn about the underlying facts to help the court judge the validity of the conclusions. The material requested is relevant for the assessment of the validity of the conclusions which were drawn.

The respondent points to Fed.R. Civ.P. 26(b)(4) and argues that, since he does not fall within any of the subcategories addressing discovery of experts, he cannot be compelled to testify. Professor Snyder has it all wrong. The administration of justice requires testimony of all persons unless reasons are established to the contrary. Rule 26(b)(4) indicates that in the limited situations there described, expert witnesses are to be treated differently and provides specific procedures for those limited situations. Since Professor Snyder does not fit under Rule 26(b)(4) because the study was not developed in anticipation of litigation and because he has not been retained by either party, this rule has nothing to do with his claim not to be required to testify. The material requested is still relevant and can be compelled under Rule 26(b)(1). Rule 26(b)(4) only attempts to strike some balance between the interests of the parties in discovery of retained experts. It does not apply to this case.

Fed.R.Evid. 706(a), which says that the court may not appoint an expert on its own motion unless the expert consents to act, also has no application to the present case. The court is not requesting Professor Snyder to assist in explaining technical matters; a party to the lawsuit is requesting that it have an opportunity to review the data underlying a study that is highly damaging and is likely to be offered in evidence against it. There is nothing in the federal rules that creates an exemption for the respondent from providing the relevant material requested.

Refusal Based on Privilege

Professor Snyder contends that he has a privilege at common law not to testify as an academic researcher. This claim embraces objections 3 and 6 noted earlier.

The court is unaware of any common law privilege that would apply to this case. Under Fed.R.Evid. 501 the court is instructed to apply the substantive law of the forum with respect to privileges when the questions presented in the action involve state, rather than federal, law. Because the defendant seeks to depose the respondent in Michigan, the appropriate law regarding privilege is the law of Michigan. There is nothing in the law of Michigan that would support any of the privileges that the respondent claims. The only Michigan case cited in support of a privilege not to testify is Klabunde v. Stanley, 384 Mich. 276, 181 N.W.2d 918 (1970). In Klabunde the court held that the trial court had not abused its discretion in denying the defendant's request to depose...