In each of the above proceedings we have issued our common law writ of certiorari so that we may discuss the extent to which a litigant is immunized from discovery procedures by Super.R.Civ.P. 26(b). Each petition seeks review of an interlocutory order of the Superior Court granting a motion to compel the production of various materials in the possession of the petitioner. Three of the petitions originated in negligence actions and raise a common issue: whether written statements of witnesses taken by the petitioners' insurers are subject to discovery under Super.R.Civ.P. 34. The fourth petition relates to a probate appeal now pending in the Superior Court and concerns a demand for information, some of which involves communications between the petitioner and its counsel.
Before proceeding to examine the individual petitions, a brief review of the pertinent rules is in order. Our starting point is Rule 34, which provides the mechanism by which a party to a civil action may seek the production, for the purposes of inspection or copying, of writings, documents, photographs, and other data compilations that are in the possession of his adversary. The right to secure such material is not unlimited but is expressly made subject to the restrictions delineated in Rule 26(b).
This latter proviso delineates different limitations upon a party's access to matters possessed by another party. Rule 26(b)(1) states that discovery will be allowed as to "any matter, not privileged, which is relevant to the subject matter involved in the pending action * * * ." Thus, discoverable matter must be both relevant and not privileged. In this context, the term "privileged" denotes the recognized exclusions found in the law of evidence, such as those related to the attorney-client or the husband-wife relationship. 1 Kent, RICiv.Prac. § 26.11 at 220 (1969).
Although our Rule 26(b)(2) protects writings made "in anticipation of litigation and in preparation for trial," we do not believe that the drafters ever intended the rule to be construed so that a litigant's immunity from discovery would be lost unless he could show that the documents in his possession were obtained not only in anticipation of litigation but also as part of his trial preparation. If the rule is construed literally, a party who without any warning suddenly finds himself immersed in litigation and then seeks the help of an expert could be forced to divulge the expert's report to his adversary because, even though the report was made in preparation for trial, its formulation could not be said to be a pre-litigation maneuver. In the past, when called upon to determine whether we should substitute the disjunctive "or" for the conjunctive "and," this court has emphasized that it would not allow itself to be blindly enslaved to a literal reading of a statute or an ordinance when to do so would defeat or frustrate the intendment of the Legislature. Town of Scituate v. O'Rourke, 103 R.I. 499, 239 A.2d 176 (1968). In the Scituate case we read "and" as "or" and we shall do the same here. See 1 Kent, R.I.Civ. Prac. § 26.14 at 225 n.47 (1969). We think it quite obvious that the protective ambit of Rule 26(b)(2) was not meant to be restricted to material that had been prepared subsequent to the initiation of litigation. On the contrary, in our opinion, the rule was meant to be applied to materials gathered when litigation is merely a contingency. Thus, the rule's privilege may be invoked for materials prepared either in anticipation of litigation or for trial.
With the above principles as a backdrop, we can proceed to our discussion of their application to the pertinent facts of the petitions. We begin our analysis with the three civil actions.
Rogers v. Toegemann et al., No. 76-226-M.P., is a personal injury action arising out of a five-car chain collision that occurred on November 15, 1974. Rogers was the operator of the second vehicle in a line of vehicles that were stopped in Warwick in the southbound speed lane of Interstate Route 95. While he was stopped, Rogers alleges that he was hit by the car in back of him driven by Alan P. Durand. The impact caused him to tap the car in front of him driven by Susan A. Keegan. Within seconds, Rogers' vehicle was hit once again from the rear. It appears that two other vehicles had collided with the Durand car, forcing it into the Rogers automobile. The car immediately behind Durand was driven by Alfred C. Toegemann and owned by Amica Services, Inc. (Arnica). The last vehicle in the chain was driven by Edward W. Graziano.
Rogers filed suit in the Superior Court on July 3, 1975 against Durand, Toegemann, Amica, and Graziano. Through interrogatories propounded to Toegemann and Amica, Rogers learned that shortly after the collision an investigator for their insurer had investigated the mishap and taken
The next two petitions arose out of an incident that occurred on October 31, 1974 in Warwick. William J. Boyes, Jr., was returning from school on a bus owned by United Truck & Bus Service Co. (United). Near the Apponaug School on Centerville Road, the bus pulled to the curb, came to a stop, and discharged William, who then proceeded to pass in front of the bus to cross the road. When he stepped from the side of the bus, he was struck by a vehicle driven by Helen I. Martin. On July 9, 1976, William's father commenced a suit in his own behalf and in behalf of his son against United and Martin. United is charged with being negligent in that (1) it failed to properly maintain the school bus and (2) its driver had neglected to inspect the flashing lights, failed to activate the lights when discharging William, and had left William at an unscheduled stop near a dangerous intersection. Martin's negligence is based upon her alleged noncompliance with the terms of G.L.1956 (1968 Reenactment) § 31-20-12 (stopping for a school bus whose red lights are flashing) and her failure to maintain proper control of her vehicle.
Once Mr. Boyes received the replies to his interrogatories, he discovered that shortly after his son was injured, investigators for United's and Martin's insurers had taken written statements from several witnesses, and these statements were in the possession of defendants' attorneys. Subsequently, United and Martin were ordered to produce the statements, and we then issued our writ.
At the outset we can quickly dispose of any claim that since the copies of the witnesses' statements were in the possession of attorneys for petitioners, they were protected from disclosure by reason of the attorney-client privilege incorporated into Rule 26(b)(1). A document that is subject to discovery in the hands of a party or his agent does not become immunized from discovery under Rule 26(b)(1) simply by delivery to his lawyer. Balistrieri v. O'Farrell, 57 F.R.D. 567 (E.D.Wis.1972); 1 Kent, R.I. Civ.Prac. § 26.11 at 221 (1969); 8 Wright and Miller, Federal Practice and Procedure § 2017 at 138-39 (1970).
The dispositive issue in Toegemann's, Amica's, United's, and Martin's petitions is whether the witnesses' statements come within the protective pale of Rule 26(b)(2) and especially that part of the rule providing for the qualified privilege of "any writing obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent" in anticipation of litigation or in preparation for trial. If petitioners are correct in their contention that they do, the burden was upon the party requesting production to demonstrate that his access to the statements was necessary to avoid "injustice or undue hardship."
The Rhode Island cases which have dealt with Rule 26(b)(2) provide little guidance in determining if the written statements qualify as protected writings under the rule. However, Fed.R.Civ.P. 26(b)(3), despite slight differences in language, is similar in effect to our Rule 26(b)(2), and we will look to the federal courts for assistance. Nocera v. Lembo, 111 R.I. 17, 298 A.2d 800 (1973).
Although these courts recognized that the potential for litigation is always a possibility on the horizon with insurers, they assert that it is not until an attorney is called upon the scene to direct that certain information be obtained because of the imminent threat of litigation that it can be said that an insurer has acted in anticipation of litigation. The mere contingency of litigation sometime in the future is not sufficient under Rule 26(b) to be "in anticipation of litigation." A contrary position would, according to the court in Thomas Organ Co., "be a foreclosure of discovery of almost all internal documents of insurance companies relating to the claims of insureds." 54 F.R.D. at 373.
The majority approach has been criticized as contrary to the wording and intent of the 1970 amendments to Rule 26(b). 4 Moore, Federal Practice ¶ 26.64 at 64 (1977-78 Cum.Supp.). Both the Rhode Island and federal rules clearly do not require the intervention of an attorney to vest writings obtained or prepared by a party's representative with the qualified privilege granted under the rules. While both rules mandate that the writings be made "in anticipation of litigation," we do not feel that this requirement can only be satisfied when an attorney had been engaged to oversee the compilation of relevant data.
We must concede that it is difficult to draw the line between materials prepared by an insurer in anticipation of litigation and those prepared in the ordinary course of the insurer's business. One court has suggested as a solution to the problem that a case-by-case approach be adopted. Spaulding v. Denton, 68 F.R.D. 342 (D.Del. 1975). We do not feel, however, that this is a satisfactory response since it provides for no uniformity in the manner in which the issue is resolved in the lower tribunals.
Another view, and the one to which we subscribe, is found in Almaguer v. Chicago, Rock Island & Pacific R. R., 55 F.R.D. 147 (D.Neb.1972).
This statement is of equal validity when the mishap involves an automobile. In our litigious society, when an insured reports to his insurer that he has been involved in an
We do not mean to imply, however, that under no circumstances can an insurer be deemed to conduct an investigation of a claim in the ordinary course of its business. In many cases an insurer may prepare reports for a purpose other than in response to the threat of litigation. For example, in Nordeide v. Pennsylvania Railroad Co., 73 N.J.Super. 74, 179 A.2d 71 (1962), the plaintiff alleged that railroad employees knocked him unconscious and threw him on the tracks. While still unconscious, a train ran over him, severing both his legs. The court permitted discovery of an investigative report taken the day after the incident on the ground that such a document was routinely prepared as required by the Interstate Commerce Commission. Obviously, the report was not made in expectation of litigation, and consequently it did not come within the rule.
Since we find that the statements taken by petitioners' investigators are entitled to the qualified privilege of Rule 26(b)(2), the burden was upon respondents to show that "a denial of production or inspection will result in an injustice or undue hardship." The determination of this issue is vested in the sound discretion of the trial justice, who should look at the facts and circumstances of each case in arriving at an ultimate conclusion. Southern Railway Co. v. Lanham, 403 F.2d 119 (5th Cir. 1968); Tiedman v. American Pigment Corp., 253 F.2d 803 (4th Cir. 1958).
The record before us is silent as to what Rogers or Boyes presented to the courts below as the circumstances demonstrating that the statements were necessary to prevent injustice or undue hardship. Also absent from the record is any indication of the circumstances upon which the trial justice relied in ordering the production of the witnesses' statements possessed by the investigators. Before this court Rogers and Boyes argue that the mere lapse of time from when the statements were obtained to when their existence became known is, in and of itself, sufficient to constitute undue hardship under the rule. In support of this contention, they direct our attention to a number of federal cases which hold that statements taken from eyewitnesses shortly after an event are unique catalysts in the search for truth in that they provide an immediate impression of the facts, the substantial equivalent of which cannot be recreated or duplicated by a deposition or interview months or years after the event. The unique quality of such statements has been determined to provide special circumstances satisfying the undue hardship requirement.
Looking now to the individual requests made by Rogers and Boyes, application of the above principle easily disposes of most of the disputed requests. The statements which Rogers sought access to in the files of Toegemann's and Amica's insurers cannot be viewed as being made either immediately after or nearly contemporaneous with the chain collision on the interstate. Alan Durand was the first to be interviewed by the insurance investigator. This took place on November 29, 1974, a full 2 weeks after the collision. The statements from Graziano and Keegan bear dates of December 5, 1974 and January 4, 1975, respectively. The time lag between the collision and each of the witnesses' statements demonstrates that these are not the almost-contemporaneous eyewitness accounts that are discoverable without a further showing.
Likewise, of six Boyes requests from United, two statements were taken approximately 11 months after the young schoolboy was injured, a third was given over 14 months from the date of the mishap, and there is no indication when the fourth statement by Daniel Boyle was obtained.
A closer question is presented by the four requests Boyes directed to Martin and the two others posed to United. All of these were taken within a time frame of 4 to 11 days after the collision.
Some courts have classified statements taken several days or weeks or even a month after the event as being "nearly contemporaneous." Tinder v. McGowan, 15 F.R.Serv.2d 1608 (W.D.Pa.1970); Tiernan v. Westext Transport, Inc., 46 F.R.D. 3 (D.R.I. 1969); Whitaker v. Davis, 45 F.R.D. 270 (W.D.Mo.1968). Their ultimate conclusions were not based solely on the extent of the lapse of time between the event and the taking of the statement. Rather, there were other factors that prompted the production of the requested documents. In Tinder v. McGowan the court permitted discovery of insurance reports containing witness statements taken during the week after the plaintiff-pedestrian was struck by an automobile. The court pointed to the fact that the plaintiff had been seriously injured, he was hospitalized for over 8 months, and unable to retain counsel to conduct his own investigation as important factors in stretching the discovery period for eyewitness statements over a week. The court did not, however, permit the plaintiff to have access to witness statements secured more than a week after the mishap. Similar extraordinary circumstances were present in Westext Transport, Inc. and Davis.
The final petition concerns a probate appeal in the Superior Court. In early 1970 the decedent, George W. McAlpine, executed a performance bond of $2,000,000 as attorney-in-fact for his father, Edward, with Fireman's Fund Insurance Company (Fireman's) as surety. Fireman's agreed to guarantee Edward's performance of his obligation under a blanket purchase order arrangement he had with Texas Instruments, Inc. (Texas). At the same time, George also signed a general indemnity agreement with Fireman's whereby he promised to repay the company for any loss it incurred should it be forced to pay under its performance bond for Edward's default on his contract with Texas.
Sometime after George died in December 1970, Texas contended that Edward had defaulted on their contract and made demand upon Fireman's for payment under the performance bond. Texas instituted suit on the bond in the United States District Court for the District of Rhode Island in June 1971 and sought a judgment of $2,000,000 from Fireman's.
Once the litigation began, Fireman's filed a contingent claim against George's estate. The claim was filed in the Cranston Probate Court within the 6-month period immediately following the first publication to creditors of the notice of the appointment of the administrator. G.L.1956 (1969 Reenactment) § 33-11-5. The basis of the claim was the indemnity agreement George had executed. The claim was disallowed on August 10, 1971 by the then administrator.
Subsequently, Texas settled its claim against Fireman's for $375,000. The date of the settlement was December 13, 1973. Ten months later, in mid-September 1974, Fireman's filed a petition with the Probate Court under § 33-11-5 to allow for the late filing of its $375,000 claim against George's estate. The request was denied by the Probate Court on December 3, 1974 on the grounds that the claim was not contingent and that Fireman's, once its 1971 claim was disallowed, should have commenced suit within 6 months of the disallowance as required by § 33-11-48. The Probate Court also ruled that a late filing would prejudice the estate because Fireman's made no effort to make the estate a third party defendant in the federal court litigation and the estate, in compromising claims it had in certain bankruptcy proceedings, had relied upon Fireman's failure to institute suit after its 1971 claim had been disallowed. Fireman's then appealed the Probate Court's findings to the Superior Court.
Once the probate appeal had been perfected in the Superior Court, the administratrix served upon Fireman's a request for the production of ten enumerated categories of documents. Fireman's objected to nine of the ten requests. Written memoranda of law were submitted to the trial justice, and after oral argument Fireman's was ordered to produce all of the requested material. The trial justice found that the material was needed by the administratrix to ascertain whether the claim was in fact contingent, when it became liquidated, and how long after it became liquidated did the insurance company file its petition. The trial justice was of the opinion that the estate would suffer undue hardship and injustice if its requests were not granted.
Before us Fireman's challenges only the grant of six requests. According to Fireman's, three of the requests seek materials that are absolutely immune from discovery because they constitute the attorney's work product. With regard to the remaining requests, Fireman's contends that these mategranted
Fireman's probate appeal in actuality revolves about four basic issues: (1) whether Fireman's claim was in a contingent status within the 6-month period during which claims are ordinarily filed against a decedent's estate; (2) whether a contingent claim must be filed within that 6-month period; (3) whether, by filing the claim in 1971 and thereafter failing to take action upon it after disallowance within 6 months, Fireman's is now precluded from attempting to reassert the claim by way of the accident, mistake, or other cause proviso of § 33-11-5; and (4) if Fireman's may now assert a claim, has it established the grounds which would serve as an excuse for its tardy filing.
However, this certiorari petition does not in and of itself address itself to these issues. It is obvious that until these issues are resolved, any decision as to the propriety of the discovery order which Fireman's now wishes us to review is totally premature.
Once Fireman's had settled Texas's claim, it embarked upon a two-pronged approach in its efforts to recover its $375,000. It filed its out-of-time petition with the Probate Court, and it also instituted direct suit against the estate in the Superior Court, in which it sought recovery under the terms of the indemnity agreement. The administratrix moved to dismiss the direct suit on jurisdictional grounds and because the complaint failed to state a claim upon which relief could be granted. The trial justice the motion to dismiss because of her belief that most of the issues raised in that action necessarily depended upon the ultimate outcome of fireman's effort to file its out-of-time claim. Fireman's has taken an appeal from the dismissal, and the appeal has been docketed and recorded in our clerk's office as "Fireman's Fund Insurance Company v. Lola-Jane McAlpine, Administratrix, No. 75-96-A."
An examination of the record in that particular action shows that Fireman's appeal brings before us for our consideration the very issues to which we have alluded and which must be resolved before a definitive disposition of Fireman's petition can be made.
In Rogers v. Toegemann et al., No. 76-226-M.P., Boyes v. Martin et al., No. 77-248-M.P., and Boyes v. United Truck and Bus Service Co. et al., No. 77-239-M.P., the petitions for certiorari are granted, the orders of the Superior Court granting motions to compel production are quashed, and the papers in the cases are returned to the Superior Court with our decision endorsed thereon.
In Fireman's Fund Insurance Company v. McAlpine, Administratrix, No. 76-195-M.P., the petition for certiorari will be held in abeyance so that it can be consolidated for further consideration with Fireman's Fund Insurance Company v. McAlpine, Administratrix, No. 75-96-A, when it is ready for oral argument.