This is a discovery dispute. It involves litigation arising from an oil drilling rig accident in which plaintiff, Joseph A. Ogea, was injured by a metal floor plate which fell upon him as he worked on the ground beneath the rig. Ogea sued his employer's insurer, Highlands Insurance Company, his employer's toolpusher and jobsite executive, Gordon E. Davis, as well as another employee and an officer of his employer. The accident occurred on February 21, 1974, and suit was filed on February 19, 1975.
As plaintiff's attorney was taking the deposition of Mr. Davis on October 23, 1975, Mr. Davis, who was on the jobsite at the time of the mishap, had several lapses of memory regarding events he may have observed and facts reported to him by other witnesses.
After determining that the accident report was in Highlands' possession plaintiff filed a motion for its production on March 26, 1976. In support of his motion the plaintiff annexed pertinent portions of the deposition of Mr. Davis. Subsequent to arguments on the motion the trial judge refused to compel production of the accident report. In his written reasons for judgment, the trial judge found that the report had been prepared in anticipation of litigation and stated: "the accident report is privileged, until `good cause' is shown. Other than a general argument, no solid `evidence' of good cause has been adduced by Plaintiff."
The court of appeal denied plaintiff's application for supervisory relief, finding no error or abuse of discretion in the trial court's ruling. We granted writs because the holdings below appear to reflect a misapprehension of the rules of discovery. For the reasons hereinafter assigned, we reverse.
The record presented for our review contains the full deposition of Mr. Davis. Apparently no additional evidence was introduced by either party at the hearing on the motion to produce. The deposition contains no direct evidence that Mr. Davis prepared the accident report in anticipation of litigation. He was never asked why he prepared the report. A party seeking to avoid production of a writing otherwise discoverable bears the burden of proving that it was prepared or obtained in anticipation of litigation or in preparation for trial. E. g., Sonier v. La. Power and Light Co., 272 So.2d 32 (La.App. 1st Cir. 1973). Cf. Commonwealth of Puerto Rico v. S.S. Zoe Colocotroni, 61 F.R.D. 653 (D.Puerto Rico, 1974); Technograph, Inc. v. Texas Instruments Inc., 43 F.R.D. 416 (S.D.N.Y.1967).
Accordingly, the trial judge was in error in finding that the accident report was prepared in anticipation of litigation, unless this fact was established by stipulation at oral argument upon the motion to produce. Because no transcript of that proceeding appears in the record and a resolution of the issue is not essential to our review of the dispute, we will assume this was the case and base our decision on other grounds.
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, and it is not a ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. La.C.C.P. art. 1422 (Acts 1976, No. 574, § 1).
A writing obtained or prepared by an adverse party, his attorney, surety, underwriter, expert or agent in anticipation of litigation or in preparation for trial is immune from discovery unless the party seeking production or inspection shows that denial
To discover written statements under Federal Rule 26(b)(3)
The notes of the Advisory Committee to Federal Rule 26 set forth the factors which
In a recent analysis of the federal decisions, Moore observes:
Plaintiff contends that he lacks independent recollection of the events and facts surrounding the accident. He was injured by an object which fell on him from a height of ten to fifteen feet. There being no evidence in the record to refute his reasonably contended lack of knowledge, we accept it as an established circumstance under which he seeks discovery of the accident report. Plaintiff argues that information substantially equivalent to that contained in the accident report, reflecting the results of an investigation conducted within days of the accident, and constituting a unique and immediate impression of the circumstances surrounding the accident, is unavailable to him despite his present ability to depose those persons present during the accident. He argues that there can be no realistically equivalent discovery of such facts through depositions relying solely on the memory of the witnesses.
The merit of plaintiff's argument is amply demonstrated by the testimony of Mr. Gordon Davis in his deposition. He was present and apparently looking directly at the plaintiff when the accident occurred. He gathered facts about the mishap from employee-witnesses under his supervision, which he set forth in the accident report along with his opinion of the cause of the accident. Yet when he was questioned about these facts and his opinion some twenty months after the accident his memory failed repeatedly regarding crucial portions of the data he recorded shortly after plaintiff's injury.
There is persuasive authority for the notion that statements taken shortly after the
See, e. g., McDougall v. Dunn, 468 F.2d 468 (4th Cir. 1972); Southern Railway Co. v. Lanham, 403 F.2d 119 (5th Cir. 1968); Southern Railway Co. v. Campbell, 309 F.2d 569 (5th Cir. 1962). See also, Wright & Miller, Federal Practice and Procedure: Civil, § 2025 at 220-21 and cases cited therein.
We cannot conclude that in every case, because of the lapse of time in itself, a party denied production of a statement taken near the time of the event will be unfairly prejudiced in the preparation of his case or caused undue hardship or injustice. However, this circumstance combined with other factors, e. g., a witness' unavailability, reluctance, hostility, lapse of memory or apparent deviation from his prior statement, may produce a substantial likelihood that a litigant will be forced to trial without information in possession of his adverse party which appears reasonably calculated to lead to admissible evidence. In such a case the risk of prejudice to his case, undue hardship or injustice would warrant an order for the production and inspection of the writing.
That the party seeking discovery was responsible for the delay in taking statements or depositions of witnesses, thereby enhancing the hardship likely to result from a denial of access to the earlier, almost contemporaneous, statements and reports, should not prevent him from discovering those documents. In Southern Railway Company v. Lanham, 403 F.2d 119 (5th Cir. 1968), the court aptly expressed the reasons for this conclusion:
Applying the principles set forth above, we find that denial of plaintiff's request for production of the accident report, containing as it does the results of Davis' almost contemporaneous investigation into the causes, facts and circumstances surrounding the plaintiff's injury, would unfairly prejudice the plaintiff in the preparation of his case, in view of his present inability, because of the passage of time and Davis' lapses of memory, to obtain equivalent data equally likely to lead to the discovery of admissible evidence.
Defendants' primary objection in this Court to production of the accident report is that it contains an expression of Gordon Davis' opinion as to the ultimate cause of
We need not consider the merit of the contention that Davis' opinion would be inadmissible at trial. But see, McCormick on Evidence, §§ 263, 264, at pp. 632-33 (Cleary ed. 1972). It is immaterial that the expression of opinion contained in the accident report might itself be inadmissible at trial. As is made abundantly clear in Article 1422 of the Louisiana Code of Civil Procedure, the test of discoverability is not the admissibility of the particular information sought, but whether the information appears reasonably calculated to lead to the discovery of admissible evidence. See, e. g., Fox v. Argonaut Southwest Insurance Co., 230 So.2d 400 (La.App. 4th Cir. 1970). Cf. 4 Moore's Federal Practice, ¶26.56. We do not regard as serious the contention that Gordon Davis prepared the report as an expert, because there is no evidence to support such a finding.
Nevertheless, defendants cite several federal cases in which opinions were deleted from otherwise discoverable documents prepared in anticipation of litigation. Southern Railway Co. v. Lanham, supra, (the court ordered the deletion of the opinion of an investigating claim agent as to the cause of an accident from an accident report ordered produced); Holmes v. Gardler, 62 F.R.D. 70 (E.D.Pa.1974); Frankenhauser v. Rizzo, 59 F.R.D. 339 (E.D.Pa.1973). These cases are inapposite because of the difference between the Louisiana discovery provisions and the federal rule under which they were decided.
Federal Rule of Civil Procedure 26(b)(3) in part provides:
Thus, the federal rule affords protection to opinions of a broader class of individuals than that found in Louisiana Code of Civil Procedure Article 1424, which prohibits discovery of the written opinions, conclusions, mental impressions and theories of experts and attorneys only.
The written opinion of Gordon Davis, neither an attorney nor an expert, but a party to the present litigation, as to the ultimate cause of the accident giving rise to plaintiff's injuries is not a mental impression protected from discovery under the Louisiana discovery rules. Both Davis' opinion as to the cause of the accident and the data he gathered from the other employee-witnesses appear reasonably calculated to lead to the discovery of admissible evidence.
Ordinarily the trial judge's finding on such issues is entitled to much weight. In a case such as this, however, where the plaintiff adduced abundant evidence in support of his motion, and yet the trial court found "no evidence" of good cause for discovery or unfair prejudice to the plaintiff's case, we conclude that the finding below must have been produced by a misunderstanding or error of law.
Accordingly, the order of the trial judge denying production of the accident report is set aside, and its production for inspection by the plaintiff is hereby ordered.
MARCUS, J., concurs.
SUMMERS, J., dissents finding no error in the judgments of the trial and appeal court judgments.