*1 rule to do so. When was Ne adopted Duncan v. & braska Sanitarium Benevolent Assn., 162, 92 Neb. A.
N. W. 41 L. R. N. Ann. Cаs it is S. 1913E from the evident decisions quite cited therein our previous part was common holding law statute, 49-101, section 1943. adopted This decision indicates whenever law in the existing of this needs opinion changing, it is the duty this court to reconsider it. of the court’s will be scope work accordingly extended into a field hitherto
greatly for the reserved it is duty whose to resolve Legislature conflicting social a fiеld in which this problems, court is fitted.' the function courts to declare the law and not to cre- ate it.
In the and clients past, attorneys have their governed in reliance on our actions what decisions have said the was. If legislation law to take judicial place, they to- consider whether required will those decisions first right were or need revision. Their place made more tasks will also difficult. J., in this dissеnt. joins
Carter, L. B. A. appellee, Haarhues, v. et al., Oliver Gordon appellants.
141 N. 2d 856 W. April 22, No.
Filed 36053. *2 appellants. C. James E. Schneider, Rush Clarke Kay Maupin, Dent, & Satterfield, Clinton Gatz, Jr., J. Rady appellee. E. A. Girard, Johnson,
Donald J., Carter, Heard before White, Spencer, Boslaugh, C. and McCown, JJ. Smith, Brower, Carter, J. appeal judgment This anis from a of the district court County finding for Lincoln each of the defendants in contempt assessing of court and fine each $25 *3 refusing produce for defendant to a written statement inspection by for which was made one Truman Brandt, L. by produced.
and which was ordered the to be court so February 26, On 1960, at about 2:30 a a.m., tractor- belonging plaintiff operated by trailer to and Brandt in. County parked Lincoln of U. struck while was on the shoulder by Highway by No. S. tractor-trailer owned Freight, being operatеd Inc., Merchants Motor which was by damage Oliver B. Gordon. Substantial was done to brought both vehicles. Plaintiff this action Mer- Freight, chants Motor and Inc., Gordon on 9, June 1960. Freight, Inc., Motor Merchants answered and filed its damages against cross-petition plaintiff. Ques- the negligence contributory negligence tions and of are the primary issues be resolved. to January plaintiff pur- 29, 1965,
On filed its motion, 25-1267.39,R. R. 1943, suant to section for an order produce inspection requiring to defendants state- by possession to of made Brhiidt defendants ment the in adjustment or representative the a claim service'on of hearing, February.26, the trial 1960. After a about produce Defend- the statement. defendants to directed comply the court’s order and ants to with the refused appeal imposed. this is taken were fines from which support of the motion to affidavit in is sworn attorneys, that Gatz, one and recites C. J. February 1960, taken on or about the was statement charged specific that counterclaim Brandt imputable plaintiff, negligence are acts contain that statement is believed to a narrative leading up at the and to, of, the events time account of subsequent copy accident, Brandt was elapsed years have since statement, and that 5 giving Brandt, It also that statement. is stated complete have a full and recol- believed, it is does not paramount impor- and that it is of facts lection copy plaintiff that he the state- tance obtain a refresh Brandt’s recollection of such facts. ment to cross-examination defendants’ Gatz called for was plaintiff from and testified took statеment counsel Morgan, February Colorado, Fort on Brandt at employee at He that Brandt was stated presently that he knows where and Brandt time resides. produce pur- filed motion 25-1267.39, R. S. which reads
suant to section any party showing good part: “Upon motion of subject upon parties, to all and notice other and therefor provisions in section the court which to the may (1) any party pending produce order an action inspection copying photograph- permit or moving party, any desig- ing, behalf of on papers, photo- books, accounts, documents, letters, nated *4 tangible things, objects, privileged,'which graphs, or any relating to evidence of the or contain constitute' scope permitted examination within matters possession, section 25-1267.02 and are in his * * сustody, control; or Sections 25- 25-1267.02and R, although depositions 1267.22, 1943, R. refer to and, S. they purport upon to define the extent limitation taking, they important determining good their are not required compel to be shown to statements witnesses under R. section R. S. 25-1267.39, required 1943. Whether or not cause was shown by the statute constitutes the crux of the case. respects
Section R. 25-1267.39, S. is in all identical with Rule 34 of the Federal Rules of Civil Pro- except renumbering required cedure for the of statutes integrate the rule into the Nebraska statutes. The adoption jurisdiction ordinarily aof rule of another re- quires great weight to the construction of the rule at the time itsof enactment courts of jurisdiction from which it was taken unless such policy. construction is violative of some established state previ- Bahr, Mecke v. 177 Neb. In N. W. 2d 573. necessary clarify ous this cases not found it “good the words cause” contained in section consequently, question 1943, and, one impression first in this state. contemplate any
The rule does not and all infor- mation, oral can be written, obtained from an adverse party right. necessity “good as a matter cause” in section 25-1267.39,R. R. S. was as a intended upon any such restriction v. action. As we said Mecke “ supra: guise Bahr, ‘Under the construc- liberal by permitting tion, should not we emasculate rules something which never was intended or is not within the ” objects they adopted.’ declared See, for which were Jeppesen Swanson, v. also, 243 Minn. 2d 547, 68 N. W. person case, Brandt, the instant In whose state- sought produced, employee ment is was the operator plaintiff and the tractor-trailer participant the аccident. Brandt is *5 be- issue the in the consideration of the and, to action category be borne the of a witness. It must us, fore is in plaintiff Brandt the of knows whereabouts in mind that pur- plaintiff for the therefore, available the and he to is, obtaining perpetuating It pose his evidence. of some that the accident occurred should not be overlooked production years prior of the demand for to day the of the accident. In addi- the on a statement shows that took tion, the evidence upon days this after the accident. from Brandt 3 showing good made of cause the factual situation and basis for a decision this court. the constitute sec- of statements of witnesses under required R. as 25-1267.39, S. cannot tion only upon right. They may be obtained of matter ap- Relevancy showing good tо issues must of cause. relevancy pear, were, alone is not sufficient. If it but good requirement must shown would provision. meaningless “Good cause” intended be a obtaining upon any of and all docu- as a restriction papers, photographs, books, accounts, letters, ob- ments, jects, custody things, privileged, are in the or party. It is contended that of adverse and control require parties discovery purpose is to to disclose perfect justice that more will be facts in order all the competitive bad features and that attained game eliminated; that trial become less a trial be they litigants being energy. But skill, what wits, tendency put known their best foot their are, adversary interest, the must use in their own forward counteracting arrive at the unvarnished truth. methods to justice strip the cause of serve It would protecting these human tenden- the means of impeachment, by cross-examination, and other de- cies long demonstrated as effective have been vices, which discovery insuring the ultimate of truth. methods purpose supplant of rules It is not the implement purpose adversary system. Their our circumstances, under all the reason for when, discovery procedures outwеighs the use harm adversary, imposed upon justice requires use. their proper But unless such a use can be sec- shown, which “good designated tion cause,” the statute is not available. meaning proper requiring statute
cause be as a condition shown to the issuance of an order produce a statement of a witness in the hands anof *6 great party importance adverse is of in this of area always law. While the courts have not consistent been interpreting meaning, in its the facts each case are important solving particular problem. each general work-product attorney rule,
As a of an discovery. nonprivi is free from Where relevant and leged attorney’s facts remain hidden in an file and where production of those is facts essential to the establish disсovery may properly ment one’s case, be had. Even though they may they admissible in evidence, may proper subject be a when the witnesses they give are unavailable or clues to the or existence location of relevant facts. Alltmont v. United States, justified 177 F. ordering 2d 971. But the is production simply theory documents on the that sought privileged. facts are relevant and are not Taylor, Hickmаn v. U. 67 S. Ct. 385, 91 L. Ed. production 451. Nor will the of statements be ordered merely help prepare counsel himself to examine witnesses and to sure nothing. make he has overlooked Taylor, supra. Hauger Hickman Chicago, v. In v. R. I. & R.R. Co., P. F. 2d 501, the court said: “Even though lawyer hopes that upon or guess, believes, based conjecture suspicion, reading or that a of the statements impeachment, give would reveаl basis for or him other practice information, valuable it has never been the generally require production courts of such state ments under such circumstances.”
Some of considerations involved have been ex- n (1) availability person
pressed whose as: The (2) having deposition sought is his taken. to the made the statement was The relation of time (3) ability litigation. of mov- in the event involved maker of the state- with the ant to match technical skills (4) hostility the movant. the witness ment. Co., 34 F. R. D. 463. v. Boston Ins. Scuderi the court said: 21 F. R. D. David, Wilson v. In oppo- regard to the made witnesses “In statements generally party held site it seems to be appears production is not when for their shown readily to the available are known witnesses moving party. matter has been reviewed This entire Grocery 15 F. Co., C., v. Fred Albrecht D. Scоurtes page at 59: ‘Where dis- R. D. where the court said product” covery of an attor- materials not “work sought, requirement “good ney is one of cause” is present “Good cause” is under Rule where knowledge of an is the exclusive the information within inequality investigative adversary, is there or where adversary opportunity, where the has taken state- witness hostile or no of witness ment seeking discovery. longer These available to standing justify combination, or in alone will factors, *7 requirements other of Rule 34 have been if the contemplates clearly “good Rule that cause” met. The something greater showing than a mere shall consist ” relevancy.’ movant to is on the demonstrate the burden to The good in the record that the facts cause ex- from court requiring the statement. isted for right; to аn order entitled as a matter is not Movant special circumstances show will sustain he must Any by granting order. discretion exercised judicial a matter must be in the not one. whimsical gave Brandt, his statement to defend- witness, February days gave Three 26, 1960. later he
ants on concerning plaintiff. statement recol- accident His certainly good lection incident was the one as plain- as instance in the other. The evidence shows that tiff knows the whereabouts of does not Brandt any attempt deposition that show to take his been . There is made. no evidence that Brandt is hostile to plaintiff any way cooperate. he that has in failed given years ago, The statement was as was the state- given plaintiff. urged ment to the It is not that any statement taken defendants is different than by plaintiff. why one taken is cаn- It not Brandt shown memory not refresh his of the accident the statement gave plaintiff. he to the Whether or recalls not Brandt appears certainly the facts to be a matter of surmise, nothing steps there is to indicate had taken been knowledge. to ascertain the extent of his The defend- special ants these contend facts show no circum- requiring produce stances them to thе statement. argues,
Plaintiff
however, that
as the driver
Brandt,
chargeable
negligence
tractor-trailer,
im-
putable
plaintiff,
any
to the
admissions
Brandt
against plaintiff,
can
used
and that he is
entitled
such
know
facts. He contends also that
Brandt
represented by
gave
not
counsel when he
the statement
copy.
to the defendants and that he was not
special
The facts indicate no
circumstаnces amount-
ing
necessary
bring
section
operation.
lapse
years
into'
time,
of 5
ordinarily
important
while
im-
consideration, is not
portant here because
took a
each
statement at about the
same time. The record does
show
that Brandt’s
memory
faulty,
being,
the fact
far as
so
the record
attempt
shows, that no
has been made to' find
For
out.
years
preserve
had failed to discover and
knowledge.
course,
the extent
Brandt’s
It is true, of
giving
may
that a
things
witness
not state the same
one
he
does
another. But
re-
the fact
adversary
deprived
only
should
mains,
of
*8
testimony
unless
or false
colored
means he has
pur-
good
usual
overrides the
cause be shown which
balancing
poses
in-
of
such
It involves a
of
evidence.
pro-
adversary
The trial
a
suit is
an
terest.
law
still
require
discovery
ceeding
do not
and our
statutes
including
party
that which
evidence,
disclose all his
unscrupulous,
justice under
unless
tends
restrain the
good
requires it.
the name
right
25-1267.39,
section
The
under
dependent upon the
circumstances
is
facts and
particular
In the instant case the witness
in each
case.
days
gave
after
the
a written
production
giving
The
of defend-
one to
defendants.
memory
witness
to refresh
ants’ statement
good cause.
constitute
such circumstances does not
under
showing
case does
show that the
in the instant
deposition
he
been taken or that
has
witness’
although his
was known.
interviewed,
been
whereabouts
memory
necessity
refreshing
witness
admittedly a matter of surmise
in
record is
asserted
though
of the fact
available.
the ascertainment
even
preparation for trial сan
The mere fact that
work
laborious
the use of statements obtained
be made less
per-
adversary
cause. To
not constitute
does
witnesses
of written statements of
mit the
solely
in the examination or cross-examination of
to aid
impeachment
is not
to avoid
of witness
witness
scope
A
of section
R. S. 1943.
within
guise
discovery,
look
party
under the
entitled,
adversary
preparing
trial
of his
thе shoulder
over
only
adversary proceeding.
when evidence
necessary
of facts essential to his
establishment
to the
exclusive control
adverse
in the
case is
may
be resorted to.
25-1267.39,R. R. S.
section
sought is an
whose statement is
witness
The fact that
being
participant
parties
employee
and,
one of the
position
wrong,
alleged
in somewhat the same
showing good
party,
the movant from
not absolve
does
*9
cause. Under the facts
and
contained in the record
special
recited,
herein
we find no
circumstances
require
statement for
use
party. Undoubtedly
helpful
adverse
it would be
examining
counsel to have the statement
in
avoiding
possibility
impeach-
the witness and in
ment. But these considerations
alone do not amount
good
supported
generally
cаuse. These views are
Ry.
Guilford National Bank of Greenboro v. Southern
Co.,
The order to the written statement of the wit- supported by showing ness Brandt is not The order of cause. finding guilty the court the defendants contempt assessing and fines them is reversed. Reversed. participating. J.,C. not
White, dissenting. Spencer JJ., and Boslaugh, agreement many While general we are in opinion, statements in the it is our conviction that we discovery by should thwarting not emasculate pur- its pose by unduly strict construction. pertinent to observe that section 25-1267.39,R. R. “* * * part: reads in the court in which an * * pending (Italics
action supplied.) This may only interpreted importing can a broad discretion in the trial court. purpose and intent of statutes is leave application
their to the sound discretion of the trial court. governed only Sound discretion is one controlled and statutory enactments but also considerations policy, necessity, propriety, expediency in the particular Necessarily judge case at hand. the trial position judge ap- in a better these matters than an pellate court.
Does the record before us show an abuse of discre- part judgment tion on the of the trial court? In our recognizе We does not. that Brandt’s statement inis category of a witness, but his statement in this sitúa- litigation. party While tion is akin to that of a jurisdictions, unanimity state- various there is no frequently parties con- are ments obtained from the category mere those of sidered to be in a different than witness. Lehigh Valley F. R. D. 383 Co., 28
In Pasterak v.
R.R.
(1961),
specifically
there
the court
found
where
allegation
was in
that the
was no
or insinuation
аdvantage
any way
defendant’s
misled or taken
taking
representative
he was
a statement where
represented by
not furnished with
counsel
plaintiff maintains
“The
the court said:
statement,
simply
circumstances in which
that under these
party, he is entitled
a statement to an adverse
*10
copy
The
of such statement.
to be furnished with a
position.
weight
supports
authority
Pennsylvania
R.
Pa.
7 F.
D. C. E. D.
Co.,
Neff v.
Hayman
Compаny,
D. Ohio
D.
Pullman
N.
532;
v.
pp. 1147
238;
Practice,
Federal
Vol.
8 F. R. D. Moore’s
Reynolds,
Safeway
through
v.
Stores,
Cf.
Inc.
App.
194,
have determined that there distinguishes special from circumstance which ordinary counsel where the would situation and op- taken on behalf like examine statements employer an posing party. to whom here, Where, imputed negligence may a employee’s see seeks to' ig- incautiously, employee may have that the statement inadvisedly signed, particularly norantly, where that the statement form, where is in narrative representative day the accident taken the particularly adjustment where the service, and claim employee appear given copy it, it would was not involved. considerations are to us different summarily opinion majority these con- brushes off em- a statement was because siderations ployer employer cannot days the accident. after 3 possibly particular phraseology know the used investigator in a narrative statement secured a time at employee may suffering when the still be from the particular phraseology, effects of the accident. This investigator, unexplained which would be that of the very prejudicial. question could peachment. It is not a im- purpose accomplish very thing
Its tois adopted. for which statutes were Company, corporation, MFA Mutual Insurance appellees. appellant, al., v. Duane et Sailors 2d N. W. April 22, Filed 1966. No. 36071.
Baylor, Baylor Dwight Evnen, & Urbom, Griffiths, appellant. Grimit, and Robert T. Cooney
Boland, Mullin, Gurske, Walsh & Harold L. appellеes Pupkes et al. J., White, Carter, Heard Spencer, before C. Boslaugh, JJ. Smith, Brower, McCown, *11 J.
Boslaugh, declaratory judgment brought This is an action for a Company MFA Mutual Insurance to determine its rights liability liabilities under an automobile in- policy Jerry surance issued J. Janko. policy a 1955 insured Ford automobile. September operating 10, 1960, Duane On Sailors was automobile when was involved in insured colli- Pupkes an automobile owned sion Ervin