*1 ex rel. M. PACK, OF TENNESSEE DAVID STATE Highways, Petitioner, v. Commissioner of WEST DISTRIBUTING TENNESSEE COMPANY, Respondent. S.W.(2d) 355. July sitting en banc at Nashville. 1968.
Court *2 George Attorney P. McCanless, Den General, John Yan Bosch, Jackson and Hanover, Jr., Hanover, Hanover, Memphis, Special peti- & Barnes, Walsh Counsel, for tioner State Tennessee rel. ex respondent.
Jack Manhein, Sr., Jackson, for Hewitt Tomlin, Jackson, curiae. amicus McAMIS, P. J. This is before the case convened Court, en under banc 23 of the Rules Rule Revised the Court Appeals, to resolve conflict between sections by majority certified Court, exist of the Western point Section. The of conflict concerns of a appraisals possession condemnee discover Highway Department pertaining State to the value of sought highway purposes land be condemned right to witnesses on and dam- examine value purposes.
ages having judicially deter- The existence of a been conflict longer concerned mined Western Section no we question. giving rise To review here cases with that profitable. not be Our would, therefore, to the conflict purpose put present at rest and fashion Discovery Statute, a rule within the framework seq., will serve the 24-1201 et which best sec. T.O.A. justice apply then to rule administration present case. Judge, application the Circuit
On March 13,1968, Billy requiring an order Joe entered the condemnee, Highway Engineer High- State Tucker, Assistant *3 duty Department charged appraising way with the of right negotiating purchase property of for the for and taking way give purposes, dis- to evidence on the his appraisals covery deposition “relating for to all made damages procure, petitioner to and said defendant’s copies appraisals produce file said or true thereof as and testimony; petitioner his further to and that exhibits attorneys, appearing petitioner’s that latter the and/or appraisals, possession return same of said to now have the to official of Billy Tucker the end said said Joe may Department give Highway with evidence Tennessee appraisals, respect file said or true and cor- thereto and ’’ testimony. copies his exhibits to thereof as rect juncture application now the State filed the At supersede the of the Circuit to order under consideration argument inter the State has contended, oral Court. permits to search the condemnee the order alia, privileged discovering purpose through files for the its product appropriate of the the State’s and information to entering preparing* in work in ease trial and acting in its Conrt was excess Circuit order, .the jurisdiction. appears strictness,
As* order from the under review, question right only the of the narrow of the condemnee appraisals written files of the State is discover argu- presented in now involved. the case was However, involving question ment as of a the broader proceeding in a discover condemnation testimony adversary taking deposi- of his opponent’s expert anticipate tion of his witnesses. We that this broader will before the case arise n tried lay at this feel constrained down and, therefore, appropriate procedure guid- future time lines ance-of the court. any “regarding
T.C.A. 24-1204 sec. authorizes subject privileged, which is matter, relevant * * * including pending matter action involved description, custody, condition, and nature, existence, things tangible any or other documents, location books, knowledge having identity persons and location of relevant facts.” S.W.(2d) Tenn.App.
In Puckett v. Broome, produce Judge the defendant to the Circuit ordered .his.-report all of an accident to his carrier insurance company him to insurance .written made statements concurring opinion *4 In the accident. relative to the ground only majority superseded but on the order the was required by make such contract to was the defendant company and that the insurance to documents available right was company’s information demand this .the to right property which privileged a could and amounted discovery. from on not be taken 310 McAdams, Inc. v. 216 Service,
In Medic Ambulance S.W.(2d) plaintiff sought to com 103, 392 Tenn. the Railway Company produce pel taken the statements immediately agent from crew claim its members its showing following a accident. There was no the agent subpoena on had ever been served the the diligence “discovering plaintiff any in for had shown inspection copying”. sought material and himself the requiring judge grounds order of the trial these On production but unwarranted; the material was held opinion Supreme concluding portion of the said: Court prejudice does observe,
“We plaintiff pursue the within further matter Discovery Law of and limitations the bounds 1959.” Gentry, Leasing, Inc. v. Fleet
In Southeastern S.W.(2d) Tenn.App. again discoverability In considered. of documents was production of plaintiff a state holding to the entitled hospital regarding the. while in the he had ment made litigation, said: we involved accident statute) promote “(The) purpose (of is to preparing aiding of truth ascertainment possible surprise prevent as far and insure trial, upon fortuitous than rather merits, ** *” developments at the trial. unforeseen said: case we same authorizing discovery are in actions at law “Statutes liberally construed to be in nature remedial Greyhound non-privileged material. of disclosure favor 669].” 914, 915, [70 A.L.R.2d A.2d
311 Cal.Rptr. 15 266; 364 P.2d State ex rel. Boswell v. 90, (Mo.App.) S.W.(2d) Edgar Finley 334 Curtis 757; v. Mo.) (CA8 Depositions 312 23 533; F.2d Am.Jur.2d 475, Discovery, 144. and Sect.
“Although permit the courts are loathe undue inter- private exempt ference with a is not from affairs, producing papers they merely and hooks because are private. Ib. 165.” See. Ready-Mix, Harrison v. Greeneville Inc. 220 S.W.(2d) unpaid suit to 293,
Tenn. recover wages, Supreme. quoting minimum after at Court, length Leasing, Gentry, from Fleet Southeastern Inc. v. discovery supra, employer allowed ’s over records, ruling Discovery its contention since the Statute discovery expressly no does not authorize of documents, In the Court, such exists. course speaking through Burnett, Mr. Chief said: Justice proper discovery actions is a
“We think that in civil procedural parties their case aid for use given and liberal of trial and should be broad advance encourag- interpretation. times The courts modern are oper- ing deposition discovery because and the use discretionary flexibility with under the ates desirable judge logical is method and this control of permitting preventing surprise both and the court and intelligent grasp be issues to have an counsel underlying knowledge litigated them. of the facts and orderly assumption say ‘on the basic We accomplished judicial effi- dispatch more business every given plaintiff every ciently and defendant is where prepare properly his case before adequate opportunity to 201, 202, v. N.H. Rand, New Castle trial.’ Town 669].” A.L.R.(2d) [70 A.2d 312'
The cases cited and discussed demonstraté that of this state committed a liberal courts construc- application grant tion statute discretionary is reviewable denial as a action’ *6 of the trial courts. Supreme question has
The Court not ruled on the of right party discovery expert of a to examine on' the opponent, of his at issue; witnesses here have and, we by the cases heretofore decided this court are con- seen, flicting. in from other states Anno. 86 Cases conflict. A.L.B.(2d) seq. study 138 A et of the collected cases, apparent shows that conflict is more than the provisions part varying statutory is in real and due has of court in states where and rules by expressly, Some statute forbid the decided. states been expert of witnesses. others the examination upon good recognized only showing cause, as where any appears is unavailable from other the information deny discovery seriously hamper would and to source discovery seeking case. trial adhering to the rule a number of states The Courts discovery, interpretation application of of liberal discovery unless forbidden statute, hold statutes generally expert, cases is witnesses in condemnation allowable discretion court.- Reynolds v. of Waukesha Circuit In State rel. Court ex N.W.(2d) 113 NW.(2d) County, Wis.(2d) 686, 15 311, 112 required employ experts were of the state 537, opinions discovery as to value their state sought property condemned. to be Willey Ariz. Whitman, 91 370 v. ex rel. In State refusing to court in P.(2d) of the trial action
313 require expert witnesses of the condemnee to disclose appraisals'was their reversed. Authority
In Power etc. v. Kochan, Misc.2d 784, applied 216N.Y.S.2d New York 8, the Court rule same to both condemnor and condemnee. proper
Under circumstances deemed California has discovery expert allowed the condemnor’s witnesses against attorney-client privilege the claim and the product Superior Mowry work v. doctrine. Court etc., Cal.App.2d Cal.Rptr. 698. holding contrary, While there are cases we believe the majority of courts not statute or rules restricted court favor witnesses on value condem- discovery being nation cases, the allowance of available alike the condemnor and the condemnee. *7 view of the In provisions regulating rather broad T.C.A. 24-1204, of sec. scope of examination and liberal con- the rule of prevailing struction in Tennessee hold this to we be the always regard product correct rule with due to the work concerning rule, which we said Southeastern Fleet Leasing, Gentry, supra: Inc. v.
‘‘ jurisdictions Cases from other both Federal and State including Taylor [329 Hickman v. U.S. S.Ct. 451] recognize may
91 L.Ed. there be circumstances justifying compulsory production papers which product adversary party, are the work of counsel for the though party seeldng discovery it is incumbent justifying to establish circumstances invasion of files attorney. digested p. of an See cases 73 A.L.R.2d 38 et seq., dealing product’ under Section with the 'work doctrine. cases demonstrate These the correctness made in Thomas v. Trawler Red statement Inc. Jacket, prohibition (1954 D.C.Mass.) 16 ‘The F.R.D. that: not an absolute one even as to the Hickman Case is ” lawyer product” of the himself.’ “work power, 24-1205,
Trial courts T.C.A. sec. have sufficient may to so their discretion as be trusted exercise opponent prevent through sits idle while who his light energetic brings pertinent from evidence actions gaining opponent’s supply in- his files to access to that in the formation he observe, needs. We seeking present only the the condemnee is case possession. use evidence State’s —not opinion appraisers cases the condemnation great upon necessarily extent information to a is based gathered parte comparable property regarding ex sales of may may hearsay which from or written records explore price. parties If the can not the true sale reflect opposing expert predicate in advance trial likely opinions cross examination to value witnesses’ hampered largely if the severely ineffective and be underway parties infor- trial is wait until the must permit may introduction late to too mation come prime importance is the Also rebuttal evidence. represent- portion of the award to the of the witnesses as damages. ing incidental parties in condemnation that both conclude
We reasonably judge exer in the discretion cases, light of the case under of the circumstances in cised *8 may properly be take dis allowed consideration, expert opposing in deposition witnesses as to covery To damages taken. this value of land and the cidental compelled may under the direction party be end are of such witnesses. We the names to disclose court opinion, appears no sufficient reason in this requiring production appraisal for case of written preparation reports, gathered in from the files trial, legal of the State’s counsel. To this extent the order is superseded. discovery expert
If either so elects witnesses may proceed conformity opinion. with this general subject
Because of interest matter, opinion designated publication without denial of Supreme express appre- certiorari Court. We our ciation for the excellent brief filed amicus curiae. Appeals equally Costs of Court of will be divided Respondent. between Petitioner and
Cooper, Carney, Avery, Puryear, Parrott, Shriver, JJ., Todd, concur. I J. concur the result
BEJACH, reached instant I case. however think, should be the rule applied generally. opinion I think of an privileged be witness, should treated as a communication require employer, him between and his and that to such deposition witness to his disclose on a regarded should be violation the constitutional prohibition against requiring any particular man’s serv- objects. whether ices, he