This petition for certiorari raises the question whether Super.R.Civ.P. 26(b)(2) prohibits the production of the conclusion of an expert engaged in anticipation of litigation and in preparation for trial. It is a question of first impression in this state.
During the evening of April 24, 1972, the cement canopy covering one of the walkways collapsed. Shortly thereafter the town, Ashley, and Johnson all retained expert assistance to examine the area and determine the cause of the collapse. All received reports from their respective experts.
In June 1973, the town commenced this civil action for negligence against Ashley and Johnson. In January 1975, Johnson impleaded as third-party defendants Plantations and Pawtucket Ready-Mixed Concrete Co. Until then. Plantations had not been-notified of any claim against it and had not retained expert assistance to determine the cause of the collapse. By the time Plantations did receive notice of this claim by Johnson, all tangible evidence at the scene of the collapse had been cleared away.
On March 11, 1975, pursuant to Super.R. Civ.P. 34, Plantations forwarded to plaintiff and defendants its request for production of the following:
Objection to Plantations' request was filed by all. Thereafter the matter was heard before a justice of the Superior Court on Plantations' motion to compel plaintiff and defendants to comply. The trial justice granted Plantations' motion without requiring supporting affidavits or testimony on behalf of Plantations. The order granting such motion was entered on May 7, 1975.
The town and defendant Ashley complied with the trial justice's order by forwarding copies of their reports. The defendant Johnson refused and brought the instant petition for a writ of certiorari. After examining the petition and the opposing memoranda of law we granted the petition and ordered the writ to issue. Town of North Kingstown v. Ashley, 115 R.I. 944, 347 A.2d 417 (1975).
Although we do not have the benefit of a transcript of the hearing in the Superior Court, it is undisputed, as Johnson admits in its brief, that the basis for the trial justice's order granting Plantations' motion was that since Plantations was not aware of the damage until some 2 years after it occurred, and it did not have the opportunity to have its expert examine the site, it would be unjust and cause undue hardship to deny production. Johnson argues that the trial justice erred in interpreting Rule 26(b)(2); that 26(b)(2) prohibits a deponent from being required to produce or submit for inspection any part of a writing which reflects conclusions of an expert engaged in anticipation of litigation and in preparation
We do not agree with Johnson's interpretation of Rule 26(b). We hold that the conclusions of experts engaged in anticipation of litigation and preparation for trial are entitled to qualified immunity under 26(b)(2) and that upon a showing that it is necessary to avoid injustice or undue hardship, the court may order the production of an expert's reports on such terms and conditions as the court may impose.
Under Rule 26(b)(2) absolute immunity from production is given only to writings which reflect an attorney's mental impressions, conclusions, opinion or legal theories. See 1 Kent, R.I.Civ.Prac. § 26.14 at 223 (1969).
In our judgment the rule of qualified immunity is sound, reasonable and practical, as is shown by the facts in the case at bar. Here the opportunity to examine the scene and identify the cause of the injury-producing event had been removed at the time Plantations was put on notice. The difficult position that Plantations would be in, without an opportunity to discover the contents of the report of Johnson's expert, is readily apparent. It would have been compelled to submit to a trial relating to work performed in 1958, without any knowledge of the basis for Johnson's claims against it. We agree with Plantations' argument that this was not a case where it was attempting to glean the benefit of expert opinion without paying for it; rather this was a case where the considerations giving rise to the qualified immunity must yield to the need to eliminate the hardship that would otherwise result to Plantations.
Nor are we persuaded by the logic or practicality of the ground on which Johnson originally sought certiorari. There, Johnson claimed that it should not be required to turn over its report to Plantations but, rather, that it should only be required to submit its report to the court, so that the conclusions could be deleted and Plantations would learn only the facts. See Walsh v. Reynolds Metal Co., 15 F.R.D. 376 (D.N.J. 1954). See Sanford Constr. Co. v. Kaiser Aluminum & Chem. Sales, Inc., 45 F.R.D. 465, at 466 (E.D.Ky.1968), where the court stated:
For cases where the distinction between discovery of expert facts versus conclusions has been rejected, see United States v. Meyer, 398 F.2d 66 (9 Cir. 1968); Riddle Spring Realty Co. v. State, 107 N.H. 271, 220 A.2d 751 (1966); Crist v. Iowa State Highway Comm'n, 255 Iowa 615, 123 N.W.2d 424 (1963) noted in 50 Iowa L.Rev. 218 (1964); State ex rel. Willey v. Whitman, 91 Ariz. 120, 370 P.2d 273 (1962); State ex rel. Reynolds v. Circuit Court for Waukesha County, 15 Wis.2d 311, 112 N.W.2d 686 (1961); see also Long, Discovery and Experts under the Federal Rules of Civil Procedure, 39 Wash. L.Rev. 665, 694, 38 F.R.D. 111, 144-45 (1964).
Finally, we come to Johnson's claim that even assuming "injustice and undue hardship" are the proper guidelines, the record is devoid of affidavits or testimony to show what injustice or undue hardship Plantations will suffer, keeping in mind that Plantations possesses other expert reports prepared for plaintiff and Ashley shortly after the canopy collapsed. On the record before us, this argument is not persuasive. As we have pointed out above, it is undisputed that Plantations was not aware of the collapse of the canopy until some 2 years after it happened and therefore had no opportunity to hire an expert to examine the site. It is true that Plantations is in possession of other expert reports, but this does not mean that it is not entitled to the report of Johnson's expert in order to meet the allegations against it by Johnson. The basis of these allegations are known only to Johnson and its expert. In the circumstances we cannot say that the failure of the trial justice to require affidavits or testimony to establish the claimed injustice and undue hardship constituted reversible error. Moreover, as Plantations argues in its brief, Johnson has cited no authority, and we have found none, for the proposition that claims of injustice and undue hardship must be reduced to testimonial or affidavit form before they can be recognized.
The petition for certiorari is denied and dismissed, the writ heretofore issued quashed, and the papers are remitted to the Superior Court for further proceedings in accordance with the May 7, 1975 order.
Sanford Constr. Co. v. Kaiser Aluminum & Chem. Sales, Inc., 45 F.R.D. 465 (E.D.Ky.1968); Golden v. R. J. Schofield Motors, 14 F.R.D. 521 (N.D.Ohio 1952); Maginnis v. Westinghouse Elec. Corp., 207 F.Supp. 739 (E.D.La.1962); Walsh v. Reynolds Metal Co., 15 F.R.D. 376 (D.N.J.1954); Lee v. Crown Central Petroleum Corp., 33 F.R.D. 11 (S.D.Tex.1963); Feldmann v. Connecticut Mut. Life Ins. Co., 57 F.Supp. 70 (E.D.Mo.1944); Lowe's Roanoke, Inc. v. Jefferson Standard Life Ins. Co., 219 F.Supp. 181 (S.D.N.Y.1963). See also: 1 Kent, R.I.Civ. Prac. § 26.16 at 230. 8 Wright & Miller, Federal Practice and Procedure, § 2029 at 247 n. 53.