*1 MONTANA, STATE OF rеl., BURLINGTON ex COMPANY, Relator, NORTHERN RAILROAD v. The DISTRICT COURT OF THE EIGHTH JUDICIAL DIS- County TRICT State of Montana in and For the Judge Cascade, McKittrick, Thomas M. Honorable Respondent. thereof, No. 89-96. July 7,
Submitted
1989.
Sept.
Decided
Terry Trieweiler Opinion the Court. WEBER JUSTICE delivered from arises an application supervisory control This a writ of District, Eighth Cascade District Judicial Court of the County, accept application, jurisdiction Montana. We af- of this receipt argument, supervisory ter of briefs and oral we order control. Northern) Burlington Company (Burlington Northern Railroad was interrogatories ordered the District Court to certain answer enjoined compliance and was further until from Burlington order. District Court further ordered Northern pay bringing fees and costs the motion compel discovery. part part. We affirm in and reverse Gilliland, injuries
This action Mr. em- arises from received Whitefish, ployee Burlington On Northern Railroad Montana. a.m., August approximately working at as 2:50 while he was utility switching operations, foreman assisting a switch crew Mr. injured. switching him during Gilliland A railroad car ran over movement, causing amputation right leg of his a traumatic above knee, right and his above arm the elbow. August accident, just
On hours after a senior claims representative Northern, Roos, Burlington Mr. Dale interviewed the two crew operating members who were the train Mr. which hit supervising yardmaster. Gilliland. Mr. Roos also interviewed the eye There were no photo- witnesses to the accident. Mr. Roos also graphed the morning. accident This filed site same action was *3 6, August 1988, pursuant Liability Employer’s to Federal Act. August 30, 1988, plaintiff
On interrogatories, requests for served production, deposition, deposition subpoena notice te- duces cum requests on defendant. This included for defendant’s file, investigative copies Burlington safety entire rules Northern’s films, site, photographs investigative reports, of the accident and witness statements. 12, 1988, witnesses, including
On plaintiff deposed October several Roos, Burlington Mr. and the employees Northern whose statements immediately had subpoena been taken after the accident. duces tecum, Roos, requested bring which had been issued tо Mr. that he deposition to investigative subpoena the his entire file. The duces items, specifically requested including photos tecum a the number of site, of the accident and the witness he had taken. How- statements ever, bring photographs deposition, Mr. to the Roos did not the stat- ing lawyers. Mr. rather that he had them defendant’s turned over to bring deposition, did the witness statements Roos his file to but four-page safety Mr. handwritten and a list of materials with Roos’ notations, produce deposition had been At the he did removed. employees. Burlington handwritten statements of the Northern 17, 1988, interrogatories requests On October served defendant production plaintiff. deposition Burlington for Plaintiff’s During Northern the late af- was scheduled for November 9, plaintiff’s attorney re- ternoon of November called defendant to quest brought photographs that the of the accident scene be deposition. taking plain- be Co-counsel of the who would brought deposition agreed photos tiff’s be that the would deposition. parties
On plaintiff November 10 the and counsel for both arrived deposition. requested plaintiff for the counsel Plaintiff’s al- photos deposi- prior lowed to view the to the commencement of tion. he had Burlington Counsel for Northern stated that not prior a viewing photographs informed that the of the was condition agreed deposition. Burlington for Northern Counsel during deposi- plaintiff photos allow to view or after recess concluded, delay tion had been he refused commencement of but deposition photographs ques- plaintiff while the viewed the 49 begin deposition tion. counsel before the Plaintiff’s refused to plaintiff opportunity photographs acci- had the to view disagreement, plaintiff’s dent site. As a result of counsel would deposition Burlington proceed. for North- allow Counsel emphasized subpoena plaintiff ern for a future he would deposition. deposition filed a day following
On motion the aborted compel compel discovery motion to and for sanctions. Plaintiff’s requested in- production defendant’s entire that the court order file, identity experts consulted vestigative disclosure of the of all films, defendant, sаfety copies Burlington rules and all Northern morning injury, photographs of the accident scene taken the members, employees, and all statements of or witnesses. crew request prohibited from con- included a that defendant be motion compliance with days ten ducting further until after order, request expenses incurred and also included compel. On bringing the motion to December compel discovery interrogatories filed a motion to of answers to requests production plaintiff on Octo- had been served on requested also ber had Defendant but not been answered. *4 protective experts, regarding identities of the non-witness order Roos, identity Bur- by Mr. statements witness obtained requested, all lington employees earnings were Northern whose in privileged information its file. contained
211 5, 1988, On December argument the court these motions heard briefing and ordered further should be com- defendant whether pelled to experts disclose identities of non-witness and witness compel- statements. On February order court issued an ling to identify experts defendant its and to disclose the non-witnеss partial witness statements granted taken Mr. a Roos. The protective employee ordering order defendant certain that earnings disclosed, keeping employee but identities confiden- tial. catalog While the court photographs ordered safety produced, produced files be already these items had defendant on December court’s order restrained also 1989. The days pursuing from until ten after further complied it discovery requests, had with plaintiff’s and ordered de- $7,250 pay fendant to plaintiff. fees in $170 costs to Defendant through supervisory relief seeks from this a ofwrit control.
I Is issuance a supervisory appropriate regarding of writ of a control discovery? motion to compel
Defendant supervisory contends a issue that writ of control should present produc- case because the District Court has ordered tion privileged material. as- it contends because Defendant right being serted its privileged product it work is now withhold prevented conducting any discovery. from if it is contends that It required privileged is disclose “the harm material then comрlete by appeal.” cannot be there no ade- Thus rectified quate remedy.
A discovery interlocutory normally appealable, order is expressed granting and this has Court a writ in con- disfavor text of a issue. State ex Guar. Ins. Court District rel. v. (Mont. 1981), [_Mont. ___,] St.Rep. 634 P.2d
However, significant this Court in- two cases a writ has issued volving discovery Kuiper Eighth v. Court Judicial issues. Dist. (Mont. 1981), [__ _,] St.Rep. Dist. P.2d Mont. 1288, a writ had issued Court whether determine District properly granted protective Kuiper speech is- free order. involved public alleged policy sues and in that the considerations Goodyear product. Company up Kui- Tire had defect covered
212 per work also involved of whether certain material was issues product. Eighth Jaap Court Judicial District case, v. District In a second of
(Mont. 1981), 1389, 280, 319,] St.Rep. P.2d 38 Mont. 623 [191 granted its Court a writ District Court had exceeded because the privately jurisdiction by interview allowing defendant’s Jaap discovery was physicians. In the method of incorrect. in accepting discovery dispute, the court jurisdiction to resolve a (Colo. 1986), Prop.
Nat. Farmers Un. & Cas. v. D.C. Denver 718 1044, P.2d 1046 stated: discovery
“Initially pertaining to arе interlocu- we note that orders tory pro- in original an generally character are not reviewable However, ceeding. original an jurisdiction we our when will exercise place significant disadvantage litigating party order will aat merits of the case.” control, in Continen-
Regarding appropriateness supervisory of 438,] v. (Mont. 1989), tal Oil Elks Nat. Foundation Mont. [235 St.Rep. stated: P.2d this Court Supervisory litigation proper control course of is to control willfully of or disre- when lower court has a mistake law made garded injustice is there is no ade- gross the law so that a done and also, quate remedy by appeal; prevent and needless liti- extended omitted.) (Citation gation.” present discovery potentially privileged of involved case experts identity discoverability
material. of non-witness of im presented impression in The sanctions an issue of Montana. first authority Rule posed on exceed the of severe and are place the order would as will discussed further. We conclude that litigating merits disadvantage in significant the defendant at a accept supervisory control. of case and therefore
II identity of ordering Did the disclosure District Court err experts? non-witness request: following interrogatories included the
Plaintiff’s first set 7: of all “INTERROGATORYNO. and addresses State the names concerning you this action experts or conferred with have retained action; to this are relevant or facts or circumstances which interrogatory Defendants objected to this on the that it seeks basis identity experts not to be called at Defendant contends trial. discoverable, that this basing information is not this assertion on 26(b)(4)(B), M.R.Civ.P., provides: Rule party may “A expert opinions discover facts known or held specially who employed has retained or another anticipation litigation preparation or for trial and who is not ex- pected trial, only to be provided called as a witness in Rule at as 35(b) upon showing exceptional it circumstances under which impracticable party seeking discovery for the to obtain facts or opinions subject the same other means.” 26(b)(4)
Federal adopted Rule 1970 standardize expert 26(b)(4) experts witnesses. Montana’s Rule *6 testify (B) who will be called to at trial. Subdivision deals with non- experts. witness Thus the rule itself treats the classes differ- two ently. rule, identity While Advisory is not mentioned in this ancillary procedure, party may Comments to the rule state: “As an a proper showing require a party experts the other to re- name specially employed tained or . . . .” 48 F.R.D.
Defendant identity experts contends if who of have testify retained but who will not be called at trial must be dis- closed, then these witnesses could be contacted adverse party, testify. Ager and forced to of v. Jane Defendant cites case Hospital (10th C. Training, 1980), Stormont Etc. Cir. 622 F.2d holding identity expert that the aof non-witness is only upon showing exceptional discoverable circumstances. The n Ager inspection appropriate court also stated that an in-camera is initially expert. Ager determine the status of the The court its based considerations, holding policy on four as follows: “. . specially employed experts . once the identities retained or disclosed, protective are provisions concerning facts of the rule oрinions experts expert known or held such are The subverted. may normally be contacted or his records obtained and information non-discoverable, 26(b)(4)(B), Similarly, under rule al- revealed. rarer, though perhaps compel opponent may attempt an ex- pert specially employed by party anticipa- retained or an adverse trial, call, party tion of but whom the adverse does not intend to (2d 1976). Edelstein, testify v. at trial. F.2d 811 Cir. 539 Kaufman exists, possibility The although suggest also we do not it would oc- case, cur proper, party may his that it would be that a call opponent experts to the stand if retained and ask certain were witness, trial, anticipation thereby leaving but not called as a with jury party attempting sup- retaining inference that press opinions. Finally, agree Ager’s adverse facts or we view experts of the identities of consultative ‘[disclosure [medical] opinions inevitably would lessen the of candid available as number potential willing well as the consultants to even discuss a number of malpractice medical . . .’” claim with counsel Ager, F.2d at 503. Ager ‘sеeking
The further concluded that disclo “[t]he 26(b)(4)(B), heavy sure under Rule burden’ in demonstrat carries a circumstances,” ing exceptional citing Hoover v. the existence of (5th Interior, 1980), Dept. United States Cir. 611 F.2d n. 13. statutory holding Ager language of Rule accords with the (D.
26(b)(4)(B). analyzing Kuster v. Harner the recent case of 1986), Ager hold- Minn. 109 F.R.D. case which followed the only ing, explained policy one commentator that not reasons identity Ager support under this enumerated non-disclosure rule, identity language but the rule itself indicates that protected. 26(b)(4) general
“Rule and then out differ- establishes rule carves testifying non-testifying general experts. ent standards for expressly expert’s identity. of an rule does not address the disclosure Instead, (b)(4)(A)(i) expressly of a Rule 26 mandates the disclosure expert’s identity. thought that the it testimonial The fact drafters identity separately necessary expert testimonial treat the of a may identity expert need suggest that of a non-testimonial approach apply be revealed. It this restrictive seems reasonable to *7 expert only opinions the but facts and of a non-tеstimonial expert’s identity Advisory the also to the because when Committee discovered, they provided it as in Rule identity wanted an be 26(b)(4)(A)(i).” Interpretation Tapken, Harner: A New of Federal
M. “Kuster v. 26(b)(4)(B),” South L.Rev. 352 Rule of Civil Procedure 33 Dakota (1988). Ager agree its rationale. adopt the because we holding
We contrary, significant following There are no cases to the Ager prevailing view case is current cases demonstrate that identity expert of a is discoverable. whether non-witness (1986), Gall, Young 42 (See, Const. Co. e.g., Detwiler v. Landau and 316; Kuster; Sinking Barge In re Wash.App. 712 P.2d of (U.S.D.C. Ranger 486; 1981), I re Time Texas F.R.D. In Pizza (N.D.Cal. 1986), 94). Litigation Theatre F.R.D. Securities identity experts We hold that the is discovera of non-witness 26(b)(4)(B), M.R.Civ.P., only upon showing ble under Rule of ex a ceptional case, present In circumstances. made no showing portion of need for This of the District this information. Court’s order is therefore reversed.
Ill Did the ordering District Court err in state- disclosure of witness by representative ments taken the senior defendant? claims accident, Roos, Within hours after Mr. Gilliland’s Mr. Dale representative Northern, senior claims Burlington interviewed operating two crew members were which hit Mr. who train supervising yardmaster Gilliland. The was also interviewed. One of interrogatory questions sought discovery issue at of these interviews. product”
Defendant contends that this information “work and is privileged, citing M.R.Civ.P., 26(b)(3), perti- Rule which states in part: nent
“(3) preparation: Trial Subject provisions Materials. of sub- (b)(4) rule, party may division of docu- obtain tangible ments and things otherwise discoverable under subdivision (b)(1) of prepared anticipation litigation this rule and or for by party trial or party’s represen- for another or or for that other (including indemnitor, attorney, consultant, surety, tative his in- surer, agent) only or upon showing seeking that the discov- ery has preparation substantial need of the in the of his materials case and that he is hardship unable undue without obtain equivalent ordering substantial of the materials other means. required showing of such materials when has made, protect im- against the court shall disclosure of the mental pressions, conclusions, opinions, legal an or theories of representative party concerning other the litigation.” agent Defendant were taken contends that these statements anticipation litigation. were taken Defendant may only upon contends that this discovered a show- information ing need, equivalent the! cannot substantial substantial hardship. be obtained without undue simply
Plaintiff contends that these were statements statements *8 216 in the are discoverable without regular
taken
course of business and
Cantrell
any showing
holding of need. He
this Court to our
refers
318,
(1986),
v. Henderson
221
P.2d
in which this
Mont.
718
his insur-
Court
that a
made
a defendant to
concluded
statement
filed,
anticipation
company,
ance
suit
was not taken
before
was
privileged.
litigation and was therefore not
present
holding in Cantrell controls the
is
We conclude that the
sue, allowing discovery.
procedure
premised
rules of
are
The
civil
begin
policy
discovery. We
upon a
liberal
broad
therefore
premise
generally
with the
that these statements are
discoverable.
the rail
regular
The
course of
statements at issue were taken
business,
disputed
in Cantrell
department
just
claims
as
road’s
regular
in the
of the insurer’s business.
statement
taken
course
statements,
present
contemporaneous
In
taken within
case the
accident,
non-duplicable
unique
24
and should
hours
are
Railway Company v.
parties.
Southern
be available to both
See
(5th
119;
1968),
Ry.
v.
& W.
Lanham
Cir.
403 F.2d
Stout Norfolk
(U.S.D.C.
1981),
F.R.D.
The modern trend favors
Co.
Ohio
Lang
type
analyses,
For
see
of this
of information.
similar
(Alaska
999;
1988),
Champion
Nat. Farmers Un.
don v.
752 P.2d
(1979),
Prop,
Cas.; Henry
Inc.,
225 Kan.
Enterprises,
v. Smith
615,
however, every apply to rule can formed to because no absolute (App.1985), Orzel agree in Klaiber v. case. We with which re- sought must be Ariz. 714 P.2d that a balance facts, allowing party quires appropriate disclosure of without Klaiber court party’s As the build its case the other efforts. stated:
“Thus,
case
court’s discretion
each
must
exercise
trial
ensuring
the re-
striking
that counsel for
involve
a balance between
work done
questing party
permitted to build his case
is not
ul-
opponents
fostering
his
sufficient disclosure to enable
development
to be
on full
timate determination of the issues
based
requires
element
presentation
facts. The first
relevant
the same or
counsel to obtain
consideration of the efforts made
requires a consideration of
equivalent
element
material.
second
sought.”
purpose
it is
for which
the nature of the material and the
Klaiber,
has worked
does
his case so that this statement
apply
present
case.
premise
we begin
While
statements are
these witness
discoverable,
ordinary
taken in the
are
we
course of business and
*9
recognize
may very
portions
that
in such statements
there
well be
they
product
which
not
work
are
discoverable because
constitute
privileged.
are therefore
26(b)(3) precludes inquiry
Rule
“in antici-
into information taken
pation
litigation.”
theory
This
stems from the
that at-
standard
torney
product”
concept
“work
privileged,
is
a
articulated
first
Taylor
Hickman v.
(1947),
S.Ct.
We hold that witness statements were taken the ordi nary pre course of business and In are therefore discoverable. sent case defendant has cited to court no facts which would render privileged. these statements We affirm the District Court’s order of disclosure of these statements.
IV Did enjoining the District Court from other err defendant discovery complied discovery until it had the court’s order? with hearing compel discovery sanc- on motion to and for tions was held on its December 1988. The issued order February 10, identity of non- ordering 1989. After disclosure statemеnts, experts, witness the Dis- disclosure of witness discovery enjoined initiating any trict Court defendant further from days until compliance ten after with order. Plaintiff’s motion protective quash subpoena order and to duces tecum him, deposition, compelling appear had been him to served granted. plaintiffs specifically was The court’s order ordered days deposition not defendant had could be taken until ten after fully complied discovery a trial with the court then set order. September date for against discovery in- urges injunction is both
Defendant that this appropriate overly severe. contends it did Defendant discovery comply refuse to no order had an since inappropriate issued. Defendant contends that the sanction also compel was sub- opposition because defendant’s to the motion to stantially alternative, justified. urges that the sanc- imposed overly alleged tion severe in relation to the abuses. 37, M.R.Civ.P., Rule abuses. authorizes sanctions for statu- examination of the Both overview Rule 37 a close tory rule language understanding should aids оur how applied. Civil was enacted Rule 37 of the Federal Rules of Procedure self-executing and the framers because the rules are not recognized possibilities Rule 37 is identi- of abuse. Our Montana and stood virtu- cal to the federal rule. Rule 37 was enacted in 1938 *10 substantially ally unchanged until 1970 when it was revised. frequent encourage amendments use of 1970 more were intended to Kane, Miller, and Federal Practice Wright, sanctions for abuse. (1970). Procedure, 2281, p. 756 § 37, M.R.Civ.P.,
Rule divided four The distinc- into subsections. recognized analyzing the facts tions between each must be section 37(a) present may apply for provides party the that case. Rule discovery. court compelling granted, motion is the If the party, “unless moving shall and award fees costs to rule opposition substantially justified.” This same to the motion was if is denied. applies party opposing to motion the motion 37(a)(4). Rule 37(b) comply with an provides for for failure to
Rule sanctions appears that a necessary willful. It It that the failure be order. is not So only finding of of sanction. willfulness is relevant to choice 1087, 197, 2 (1958), Rogers 78 S.Ct. ciete Internаtionale v. 357 U.S. 37(a) (b) contemplate giv conjunction, In L.Ed.2d 1255. Rules requests comply ing the a second chance to awarding before sanctions. 1) 37(d) specific failure
Rule 3 failures: authorizes sanctions for 2) inter- answers to deposition, at failure serve attend one’s own
219 3) rogatories; response request failure to serve a written to a production. failures, may In the event of a court one these issue sanctions, ordering non-responding party without first to com- ply. contemplated. important No second chance is It is to note this 37(b) 37(d). (b) between Rule distinction and Rule no Under section order; previous sanctions are available without a court under section (d) necessary, however, no order is only sanctions are authorized for the three enumerated failures. has acknowledged Montana distinction former cases. See — (N.A.)
First Billings Bank v. Heidema (1986), 373, 219 Mont. 711 (affirming P.2d judgment 1384 in favor of bank entered trial pursuant 37(b) (d) court to Rules for borrower’s willful refusal deposition, documents, to attend own produce ignor- refusal to ing Roy Stanley Dassori v. compliance); directing orders Chevrolet Co. (1986), 430, 2113, 224 St.Rep. Mont. 728 P.2d (holding compel that a required motion to is not as a condition 37(d), affirming sanctions under Rule trial court’s dismissal complaint respond as a interrogatories; sanction for failure Uglum (1982), Thibaudeau v. (refusing Mont. P.2d sanctions, instruct trial court on remand it that should award 37(b) noting requires Rule to comply failure with an order and order). there had been no present urges case defendant that sanctions were not
appropriate 37(b) pursuant to Rule because the defendant had not comply failed to with an agree order. We with defendant’s conten 37(d) tion. We further conclude that Rule does not authorize sanc present tions in the case because defendant did violate one of express Therefore, may instances it apply. there no provision within Rule 37 authorizing imposed the sanction present case.
Plaintiff language contends of Rule 37 need not be strictly adhered determining appropriateness to in of the sanc tion, power since court has inherent im broad discretion in posing sanctions. We decline to endorse the in doctrine of a court’s рower herent Although to award sanctions. courts still resort some *11 powers sanctions, to the assessing use argued inherent in it is that powers promotes inherent inconsistency doctrine and uncer tainty, “randomly-enforced system,” creates a and dilutes effect Behar, of Rule 37. See A. “The Misuse of Inherent Powers When Imposing Discovery Exclusivity Sanctions for of Rule Abuse: 37,” (1988). agree 9 Cordozo Rev. 1779 We with this rationale and 220 authority assessing that Rule should be the source of
conclude discretion is available sanctions for abuse. Broad refer- statutory language this rule without trial court within the theory. power ence to an inherent imposed too severe was
Defendant contends that the sanction defendant, abuse, Mr. agree. agent of and we relation to the depo- Roos, site his bring photographs of the accident did not 12, subpoena disobeying duces tecum thus sition on October photo- August These him 1988. which had been issued to produced by at graphs November had still not been request produc- in a deposition, although they listed had been responsiveness, the Compounding this lack of August tiоn on regarding the obviously conduct incensed over defendant’s the rec- plaintiff’s deposition. Our review of disputed photographs at however, significant there were no other ord reveals that only by two by October abuses defendant. We note accident, deposed seven of defend- plaintiff had months after the Mr. representative, employees, including claim’s ant’s the senior morning of the Roos, working the employees who were Dale and the re- had also Mr. Roos. Plaintiff gave accident who a statement to Octo- members. On of these crew ceived the handwritten statements plaintiff’s interrogatories responses sent ber defendant de- material to which requests production. Aside from the Sup- responsive. interposed objection, the answers were fendant Thus within two plaintiff. plemental responses were later sent to plaintiff had obtained injury, from the date of and a half months discovery. requested most of the fact, information; the amount has not been denied
Plaintiff time dem- amount of discovery accomplished by plaintiff a short discovery. In con- cooperative has been onstrates that defendant accident, only plaintiff, the witness trast, nearly year after the a Prohibiting accident, deposed defendant. still has not been set- sanction, compounded in this case discovery is a severe reveal record does not September trial date. The ting the severe warrant which would egregious conduct imposed in this case. sanctions discovery was prohibition on Sheehy’s suggests the dissent
Justice 26(c) so pursuant to Rule part protective order authorized as point out appropriate. We of Rule 37 is that our discussion 26(c) protect a is authorized protective under Rule *12 annoyance, embarrassment, oppression from burden or or undue ex- pense. present We in conclude that none of are this case. these regret experienced
We that counsel were not able to resolve this communication. through issue between themselves reasonable While attorneys pit” may impulsive we in an understand that “in the react manner, disputes instinctive such are best resolved between the attоrneys. Unfortunately dispute significant a minor evolved into a telephone questions. court issue where calls could have resolved portion enjoined of the District Court’s order which defendant days compliance from further until ten after order is September therefore vacated. We vacate the 1989 trial also date, allowing date and a order the court to reset new trial both parties adequate pursue discovery. time to
V pay Did the requiring District Court err in to defendant attorney bringing compel? fees costs incurred in the motion to February
The District order Court defendant ordered pay to $7250 in fees and costs which were incurred $170 by plaintiff bringing discovery. compel motion may argues expenses pursuant
Defendant that be awarded to Rule 37(a)(4) opposition substantially unless justi- motion “the was fied.” opposition Defendant contends that its to disclosure of the identity experts opposition of non-witness and its to disclosure of substantially the witness justified, was as demonstrated statements appealed the fact that these issues were to this Court. Defendant oppositiоn also contends its earnings that disclosure of the of cer- Burlington substantially tain employees justified Northern was as granted partial demonstrated the fact District that Court a protective issue, protecting the identities of the employees. record, however, non-pro
From the it clear that defendant’s partially duction photographs site the accident at least mo tivated compel, both the motion and the Court’s order. District photographs clearly point These were and at no did de discoverable dispute However, dilatory fendant in producing was this. tecum, photographs, obey subpoena did not duces was uncooperative plaintiff’s deposition refusing to allow at prior deposed. photos to view the It being is understandable point, plaintiff’s compel at this dis- that a motion to counsel decided covery oppose plaintiff’s necessary, while was not defendant did photographs to these photos, entitlement did fact deliver order, prior December the court’s conclude that we compel response largеly motion to court’s and the order were timely fact man- produced photographs that the were not expenses appropriately ner. Thus conclude we were 37(a)(4). pursuant awarded to Rule may not be be-
Defendants contend that this award affirmed also expenses 37(a)(4) only an made cause under Rule can award issue, present hearing hearing on the no in the after held case. 37(a)(4) require oppor hearing merely
Rule but does *13 tunity hearing. request for a The does record contain a not hearing part before the We the District Court on the of defendant. attorney the of fees award and costs. affirm JUSTICE CHIEF HARRISON concur. TURNAGE JUSTICE GULBRANDSON, dissenting: specially concurring and JUSTICE I majority opinion first four issues concur with the insofar as the concerned, of the respectfully are I to the affirmation but dissent $7,250 fees, costs, bringing plaintiff’s of in attorney in the award compel attorney fixed discovery. fees appears It the motion by majority has clearly the District Court involved the items which were I the of attor- now ruled discoverable. issue not would remand ney fees and costs to the redeterminatiоn. Court for District McDONOUGH, dissenting:
JUSTICE The be- clearly squabble facts this case which escalated in show a discovery. tween common- advocates relative to Such differences are place of at the discretion disposed trial court level and in are of interlocutory judge. non-appealable These trial orders are remedy adequate losing normally rules has our for the Here, appeal judgment. the final relative from the decisions any discovery dispose any aspect case major not with did finality, deny be right which fundamental would substantive defendant, entangle- any procedural prejudicial to are nor there ments, necessary supervision proper. This trial is not deny I would writ. in foregoing
JUSTICE concurs HUNT dissent. SHEEHY,
JUSTICE dissenting: The background factual is coun- this case one where railroad obstructively sel discovery process. Judge frustrated the District McKittrick, implacable belligerence, faced this record of re- with remarkably by finding objectors strained himself con- tempt limiting his order to mere assessment of fees costs, which this Court no alternative but to has sustain. opinion
The condoning of this Court while not obstinate block- ing case, anybody’s pains is not to this at some hurt feelings. respect- The nonapplicable result is series of statements 37) ing discovery (especially pertinent about Rule are not case, this only difficulty and which can be a source of future cases problems when arise.
Identity Experts Not To Be Called Of subject the District Court as follows:
“1.
respond
interrogatory
The defendant
is ordered to
by identifying by
Number
experts
name and address those
it has
though
retained and
conferred
even
it has no intention of call-
ing them as witnesses at the
of trial. This
time
information
required
M.R.Civ.P.,
addition to that
Rule
information
concerning
experts
those
whom the
intends
as wit-
to call
names,
nesses
ordering
at the time of trial. In
the disclosure of these
court concurs
reasoning
with the
set forth
States
United
Baki v. BF Diamond
District
Maryland,
Court for
the District of
Construction Co.
(1976),
That not given by refusing to make reason railroad thereto, such interrogatories, responses disclosure. The are and the as follows:
“Interrogatory No. 7: State the names and addresses of all experts you concerning any have retained or this or conferred with action action; (a) facts or this and circumstances which are relevant to trial; experts you expect expert state at which call as an witness to “Answer: Objection interposed interrogatory must be to the to this experts expert it as identity extent that seeks to be called of not work witnesses at trial as seeks which constitutes it information conclusions, impressions, product seeks to invade the mental regard expert opinions legal to theories of BN’s counsel. With as testify, will be to no has been made witnesses who called decision witnesses, likely yet any, testify if BN. as to such will It is what physician plaintiff’s treating one or other medical or more providers will be called.
“Interrogatory Identify persons you No. whom have 8: all con- testify by as to experts sulted do not intend to сall at a trial but giving qualifications. their names addresses and objection posed interrogatory
“Answer: to number 7.” See only identify experts who will not be Not did railroad counsel not called, they they experts also did name intended call at not time of trial. Gall, (1986), 42 Young Co.
In Detwiler v. Landau & Construction Wash.App. counsel about P.2d warned playing games expert It said: with the identities of witnesses. discovery precludes
“Although our identities decision circumstances, experts showing exceptional nonwitness without 26(b)(4)(B) delay against using as a tactic to we caution counsel CR expert testify at trial. of an witness who will be called 26(e)(1) seasonably supple- places duty upon parties CR ex- responses interrogatories requesting ment information about testimony appropriate pert expert’s is an witnesses. Exclusion of (citing responses supply supplementary sanction for failure such cases).” identity difficulty relating of ex- real with the decision testimony nothing in
perts expected called for is that may experts have any record such exist. This Court shows opinion purely-imagined jockeyed giving advisory оn a into Moreover, quite possible in this case that factual situation. it actually employ- experts employer consulted or retained are Burlington field. corporation expert are their ees of the who have, have, people in its em- may undoubtedly does Northern example particular subjects, for ploy outstanding experts who are systems cars. engineering operation of brake on railroad air “the exist, as to persons If entitled to such identity having knowledge of discovera- persons location 26(b)(1). ble matter.” Rule Carolina Court lead of the North
In this case we should follow the
respect
expert wit-
to such
Appeals
suggested that with
*15
expected
called,
nesses not
in
that the court should hold an
(1)
camera
expert
review to consider whether the
has information of
matter, (2)
expert acquired
information,
discoverable
how the
(3)
party expects
whether the
expert
to call the
as a witness.
Moore,
(1988),
Mack v.
et
N.C.App.
al.
relating subject: to this
“Request for Production No. 14: All statements taken from crew members, employees, railroad pertain or other witnesses and which to the accident which injured Ed Gilliland was at the BN railroad yard Whitefish, Montana, August on
“Response: Objection interposed request must be as to this extent that it prepared seeks anticipation material litigation, product, work or trial Subject objection, copies material. to said see Bruce, handwritten statements of Steve Greg Loberg, Riley Russ produced Robbie response Seward subpoena duces tecum deposition attached to the copies Mr. Ruse. Also see of state- ments deposition attached to the Riley.” of Mr.
In handling
subject,
the District Court ordered:
“3. Pursuant to
Supreme
the Montana
in Cantrell
Court’s decision
Henderson,
v.
(Mont.
201,]
1986),
There is not plaintiff doubt now that was entitled to these upon request statements production, his and was so entitled at every stage proceedings before us. That issue has been de Henderson, cided in Cantrell v. Court, relied on the District quibble supra. about There should have been moment’s requested. right those statements when have matter, opinion holding, plural ending Instead of so “allowing a goes gratuitously this Court to talk about *16 no party’s subject That has rele build its case on the other efforts.” in the production to from witnesses taken vance the of statements ordinary goes on conclude business. This Court then to course of may priv be if material which these witness statements contain inspection rеlating camera to ileged some sort there should be of course, considerably the effect holding, them. of waters down That Henderson, unnécessary on the of Cantrell v. and is to decision subject of us here. the witness statements before Photographs Subpoena and the Duces Tecum request photographs response the was follows: and as of
“Request photographs All taken the for Production No. 10: 4, 1988, any of plaintiff or the injured August scene on where was injury. plaintiff’s of railroad cars Track at the time “Response: exchange photographs at agree of Defendant will place.” mutually agreeable time 1988, was response, That filed the District Court on October production of nothing production. The discov- less than a denial of “I upon a of photographs be statement erable cannot conditioned you ifwill will.” subject this ordered:
On the District Court plaintiff’s request for respond “2. The ordered to made of all production having duplicate photographs number 10 any agent at the scene photographs or of its taken the defendant any cars at the scene plaintiff injured of of the railroad where was or copies should injury injury. his These plaintiff’s at the time of plaintiff’s attorney for the with a bill then be sent to the officeof the attorneys alternative, In duplication. the defendant’s costs the duplicate can negatives who have can send the negatives then return the photographs expense at his made own to the defendant.” M.R.Civ.P., production 34(a), may request party the Rule
Under 34(b), request documents, including Rule the photographs. Under upon the re- whom may of court. The be made without leave allowed response within the time quest written is made must serve a to, 34(b) reasons for request objected if “the under Rule the objecting foregoing response shall does include be stated.” objecting production photographs. reasons to the of the
Thus, deposition it was that November when plaintiff defendant, was scheduled to be taken counsel for plaintiff presented requested photographs to the be plaintiff deposition Burling- before the was commenced. Counsel for ton plaintiff photos Northern before refused аllow view deposition during his théy but stated would made a re- available cess deposition This, or although after had concluded. 14, 1988, earlier, plaintiff since October absolutely entitled production under rules photographs inspec- of the for his copying. tion and fact, case,
In plaintiff production was entitled to the photographs and of the statements taken the witnesses at a much August earlier time. On procured had the issuance subpoenae Bruce, Riley Greg to witnesses Russ Loberg. Steve subpoenae Roos, Also issued were duces tecum for Dale Robbie Seward, Sitton, John A. subpoenae and Rich Wetsch. duces tecum, required bring the witnesses were depo- with them to their sitions, among items, photographs other statements *17 taken immediately of the following injury. witnesses These the were produced not depositions, at the time of the although no written objections prior were filed or the railroad at to the of time the taking depositions. of the non-party Some these witnesses were told statements, they counsel that as to other did not have to produce them, and that the witnesses could withhold those state- they ments if wanted to. opinion no makes mention of its Rule and affect this 45(d) provides
case. deposition Rule taking the method of the of a party witness is specifically who not a the to action. rule allows subpoenae commanding produce permit inspec- the witness to tion copying books, papers, tangible things documents and which scope permitted fall within the of the examination Rule 26(b).
Further, 45(d), person objects production under Rule if a to the subpoena, documents under objection a that must be made writ- ing days within ten subpoena, after the or before the service of or at specified the compliance. Only objec- time subpoena the for when tion is in writing party serving subpoena made is not enti- inspect copy tled to the material an order of the court is unless 45(f) provides any adequate obtained. Rule person that who without 228 upon may him obey fails subpoena
excuse to a duces tecum served contempt be deemed in of court. depositions witnesses, statements nor
At the of these nеither the produced, despite properly photographs were served sub- poenae duces tecum. Practice, pg. 5A Moore’s Federal Vol. 45-20
We find in statement: obey subpoena
“A or refuse a that val- witness cannot to for idly called are ground served on him on the documents immaterial, ground privilege against self-in- irrelevant or or crimination, any a motion to ground, other but should make or 45(b).” quash provided within time Rule proper quote language subject, On this Moore felt it (1950), Bryan v. United States late Chief Vincent in Justice U.S. S.Ct. L.Ed. 884: authority by competent have cer- “Persons summoned as witnesses necessary are conces- obligations tain minimum duties and which public legislative orderly operation in the sions interest machinery. A as an invita- judicial subpoena has never been treated hounds, testify game witness must tion to a of hare and which the - case, then, only if If that were the cornered at the end of the chase. indeed, necessary power compulsion, great so of testimonial be a nul- functioning legislatures, effective would of courts duty, importance public lity. We of this have often iterated every person jurisdiction of the Government within the perform properly summoned.” bound when in45 ob- proceeding properly under Rule Plaintiff this case was person a production from a taining discovery and of documents production of items from party. Rule 34 deals 45(b) subpoena per- party. provides Rule a duces tecum documents, son, papers, or other party, produce whether or not a hearing or taking deposition or at a enumerated items at the trial. only contumaciously
The record is clear the railroad not here request production produce proper documents after refused *18 34; employees to risk con- its under Rule it earlier allowed witness when failing pertinent documents tempt produce those court upon of a sub- depositions the them their were taken after service poena duces tecum.
Severity Sanctions recites opinion portion of the particularly disagree
I with the by egregious conduct does not reveal that “the record imposed in this case.” the severe sanctions which would warrant manner, timely in a prоduce photographs the Apart failing to from however, record, reveals that the opinion states “our review of the by defendant.” significant abuses no other there were the defendant on tactics of opinion goes on to excuse the then supplied. discovery” requested had been grounds that “most to which produce statements here had refused to The defendant v. Henderson Cantrell clearly under plaintiff entitled 318; photographs (1986), P.2d had withheld 221 Mont. tecum, nonparty’s deposition, and subject subpoena at a to a duces deposition; and had told produce plaintiff’s them the refused to at produce personal they their nonparty did not have witnesses they do not amount if not want to. If these actions statements did egre- conduct, egregious then has raised the threshold this Court overstep it. gious high can conduct so that no recalcitrant opinion is not a sanction purported revérsed “sanction” protective order response for a at all but rather a to a motion granted by the District Court. 11, 1988, its order plaintiff the court for
On November moved that had been compelling produce the evidence the defendant to hearing motion was request, a on that withheld. At the defendant’s 11, 1988, not scheduled until December 1988. On November enjoining the protective order plaintiff for a also moved discovery in the case until conducting any further defendant from plaintiff’s request for days responded ten after it had being that were producing the information and documents withheld. plaintiff, the protective
Following the motion for a order 28, 1988, that deposition on November defendant issued a notice of Kalispell taken deposition would be Wednesday, December 21, 1988, its to show Court issued
On November the District witness, Roos, Charles Dearden nonparty and to cause to Dale counsel, appear and show Robischon, James the defendant’s individu- 5, 1988, why should not each of them cause on December disregard of a lawful sub- ally contempt be held in for intentional order.) (The yet the show-cause poena. has to rule on District Court Dis- in the defendant filed response, on December alter- complaint, or trict Court a motion to dismiss *19 native, discovery, to requiring plaintiff interrog- order the to answer requests atories production. In that motion the Burlington requiring Northern moved the court “to make an order respond discovery any to before he undertakes dis- other covery (The may and such just.” other orders that the court deem “severe.”) protective same order this Court finds Court, At hearing the December before the District court ruled from the bench on most of the relat- motions ing discovery. The court took two issues under-advisement and requested briefing. additional One of the issues was the identifica- nontestifying expert tion of witnesses.
After hearing, the December 5 when it was clear what the court’s ruling be, mailed, photographs going the defendant on De- 13, 1988, photographs plaintiff’s attorney. cember February On court issued its written order this order, In separate paragraphs cause. three in the the District Court produce catalogue safety ordered the defendant to or instruc- plaintiff, produce photo- tional films or brochures to the graphs, produce and to im- statements taken from the witnesses mediately following by Burlington agent the accident Northern. The court went on to make two further orders that it necessary premises: deemed in the
“IT IS FURTHER ORDERED that due to the defendant’s failure provide prior the aforementioned information and evidence to be- ing so, following granted: ordered to do relief is Greg Loberg,
“1. the event that the statements from Robbie suggest Seward and Steve Bruce areas of which could examination during previous depositions have been if covered their their state- produced requested, plaintiff may re-depose ments had been when those witnesses.
“2. enjoined conducting any The defendant is further discov- from ery days complied in this case until at least ten after it has by pro- responding interrogatories to the aforementioned ducing produce.” those items it has been ordered to
Thus, Court, the District in the face of a clear record of obstruc- railroad, part responded pro- tion on the of the to the motion for a requirement ten-day compliance tective order entered the of a before The effect further could be had the defendant. plain- opinion protective is to remove this order and force deposition spite power tiff to a of the District Court 26(d), discovery. Rule timing sequence and control M.R.Civ.P. ap-
Thus, opinion regarding Rule 37 and in the the discussion protective This was a plicable in it no relevance here. sanctions has M.R.Civ.P., 26(c), order, under Rule issued the District Court provides: person by party from Upon orders. or “Protective motion shown, the court sought, good cause whom and for relating to a alternatively, on matters pending which the action is deposition is to deposition, court where the the court or the district protect a taken, may justice requires to make order which *20 embarrassment, oppression, or un- annoyance, person or from following: expense, including due or one or more of the burden “(1) had; discovery that the not be
“(2) discovery may only specified terms and that the be had conditions, including designation place; of the time or
“(3) discovery discovery may only by that the had a method of (Em- by discovery; . . .” party seeking other than that selected phasis supplied.) clearly protеctive by well order issued the District Court was power, upheld
within this Court. its and should be Finally, “sanction” is one it should be noted that the so-called completely power Burlington Northern within the of the defendant comply with a Burlington to remove. All had to do was to Northern just would be re- order of the District Court and the limitation punishment punishment, If it is moved. this “sanction” constituted willingly which the defendant has embraced. attorney fees and agree plaintiff
I that the here is entitled Court; disagree I with the costs as fixed the District otherwise approach opinion in rationale and of the this cause. in the proposed, was inserted
After this dissent was first there order) 26(c) (the opinion protective does not language that Rule embarrassment, oppres- apply annoyance, because there has been no sion, gratuitous That expense under the Rule. or undue burden or District completely unsupported in the record. The conclusion is put undue burden plaintiff has been Court has ruled that $7,000. obstinancy the rail- expense oppressive in excess of every pre- category of the discovery in this case fits road to refuse Moreover, 26(c) gratui- protective in Rule for a order. conditions court, in the district ignores power tous conclusion discovery sequence timing justice, interests to control the 26(d). under Rule It clear to that a district court has a should be all broad discretion of dis- to control so as to make the rules covery properly, work and that what the District Court strove to opinion process. do this case. This in itself frustrates that 28, 1989, Court, On August pending while this case still form, Justices, opinion majority and before the inwas final vacating subject, without a Court conference on the entered an order date trial of this cause that had set the District Court. plaintiff, employment The result was that the whose income from stopped injury, delay on the date of his faces a further before he can arrange desperation, trial date the District Court. his September offering filed a motion this Court on simply right expenses to waive his if all we would application. viewpoint McDonough dismiss the From that Justice justice parties by correct in his dissent. We have not serviced holding in this case. foregoing JUSTICE HUNT concurs in the dissent.