The GUILFORD NATIONAL BANK OF GREENSBORO, Administrator
c.t.a., d.b.n., of the Estate of Joseph M. Coble,
Deceased, Plaintiff, Appellee,
v.
SOUTHERN RAILWAY COMPANY, Defendant and Third-Party
Plaintiff, Appellant, v. Garland BATCHELOR,
Executor of the Estate of Annie J.
Coble, Deceased, Third-Party
Defendant, Appellee.
No. 8381.
United States Court of Appeals Fourth Circuit.
Argued Oct. 13, 1961.
Decided Jan. 4, 1962.
C. T. Leonard, Jr., Greensboro, N.C., and W. T. Joyner, Raleigh, N.C. (L.P. McLendon and L. P. McLendon, Jr., Greensboro, N.C., on brief), for defendant-appellant, Southern Ry. Co.
Welch Jordan, Greensboro, N.C. (Jordan, Wright, Henson & Nichols, Greensboro, N.C., on brief), for plaintiff-appellee, Guilford Nat. Bank of Greensboro, Administrator, etc.
Before SOBELOFF, Chief Judge, and SOPER and BOREMAN, Circuit Judges.
SOBELOFF, Chief Judge.
This appeal is from a judgment holding the defendant in contempt for refusing to obey the District Judge's order requiring the defendant, pursuant to Rule 34 of the Federal Rules of Civil Procedure, 28 U.S.C.A., to produce written statements of witnesses obtained by its claim agent. The specific question presented is whether the District Judge has abused his discretion by finding that the plaintiff had satisfactorily shown such 'good cause' as is required by Rule 34 before discovery of written statements of prospective witnesses may be ordered. Concededly, the plaintiff demonstrated that the desired documents were in the defendant's sole possession and were relevant to the controversy. Is this sufficient?
Plaintiff is the administrator of the estate of Jesse Coble who, on July 13, 1958, was killed with his wife in a trainautomobile crossing collision between his car and one of the defendant's trains. The following day, the defendant's claim agent secured written statements from six witnesses. On July 15, he secured written statements from a seventh witness, on July 16 from two more witnesses, and from another on July 19. Further written statements were gathered on August 11 and September 8. Six of these witnesses were members of the train crew involved in the accident, but the record does not disclose which of the witnesses were the crewmen.
On July 16, three days after the collision, attorneys for the plaintiff were notified of the accident, and late on July 18 they began their investigation. They interviewed witnesses on July 19, 21 and 22, but took no written statements.
An action for damages was filed on September 19. Some time later, the defendant informally disclosed to the plaintiff the names and addresses of the members of the train crew. On January 26, 1959, the plaintiff filed with the defendant forty-six interrogatories pursuant to Rule 33 which, after a few legal skirmishes, it answered in full. In response to one of the questions, the defendant furnished the names and addresses of all persons interviewed by it. On August 25, 1959, the plaintiff filed in the District Court a motion under Rule 34 seeking the production of a number of documents in the defendant's possession, including the written statements which the defendant had obtained from witnesses. The supporting affidavit stated that most of these statements were taken by the defendant before the plaintiff's attorney could begin his investigation, that copies of these statements were 'not otherwise available,' and that they contained 'relevant and material information' needed by the plaintiff to prepare properly for the trial.
The District Judge required the production of the written statements of the witnesses. Guilford National Bank of Greensboro v. Southern Ry.,
* We think that the showing of good cause required by Rule 341 is not made by a demonstration that the desired written statements of witnesses are relevant to the controversy and will aid the moving party in his preparations for trial. The scheme of Part V of the Federal Rules of Civil Procedure, Rules 26-37, establishing the entire available battery of pre-trial discovery devices,2 indicates that something more than a showing of relevancy is needed to satisfy Rule 34. The discovery devices sanctioned by Part V of the Federal Rules include the taking of oral and written depositions of persons (Rules 26-32), interrogatories to parties (Rule 33), production of documents in the possession of a party (Rule 34), and physical and mental examinations of a party (Rule 35). The scope of permissible discovery through these means is limited in each instance by the provisions of Rules 26 30(b), and 30(d). Rule 26(b) provides that 'unless otherwise ordered by the court as provided by Rule 30(b) or (d), the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action * * *.' Rules 30(b) and (d) permit the district court, upon motion, to limit, terminate or otherwise control the use of discovery devices to prevent their use in bad faith or undue 'annoyance, embarrassment, or oppression.' Subject to these restrictions, a party may take depositions and serve interrogatories without prior sanction of the court or even its knowledge of what the party is doing. Only if a deponent refuses to answer in the belief that the question is irrelevant, can the moving party request under Rule 37 a court order requiring an answer.
Significantly, this freedom of action, afforded a party who resorts to depositions and interrogatories, is not granted to one proceeding under Rules 34 and 35. Instead, the court must decide as an initial matter, and in every case, whether the motion requesting production of documents or the making of a physical or mental examination adequately demonstrates good cause. The specific requirement of good cause would be meaningless if good cause could be sufficiently established by merely showing that the desired materials are relevant, for the relevancy standard has already been imposed by Rule 26(b). Thus, by adding the words 'showing good cause therefor,'3 the Rules indicate that there must be greater showing of need under Rules 34 and 35 than under the other discovery rules.
There appear to be adequate policy reasons for imposing the good cause requirement in Rules 34 and 35. Under Rule 35, the invasion of the individual's privacy by a physical or mental examination is so serious that a strict standard of good cause, supervised by the district courts, is manifestly appropriate. Similarly, compelling the production of documents under Rule 34 can be extremely harassing. Use of the weapon which this rule forges should not be permitted without more than the easily satisfied test of relevancy. This is particularly true since the identity of the witnesses can be readily discovered by Rule 33 interrogatories. Opposing counsel then has the opportunity to interview these witnesses himself or to take their depositions. If it should subsequently appear that these exists a special need to compel disclosure of the statements themselves, this would undoubtedly satisfy the required showing of good cause.
We are not unmindful that one important purpose of discovery is to disclose all relevant and material evidence before trial in order that the trial may be an effective method for arriving at the truth and not 'a battle of wits between counsel.' Hickman v. Taylor,
The Federal Rules of Civil Procedure should be liberally construed, but they may not be expanded by disregarding plainly expressed limitations. We are not prepared to depart from the explicit language of Rule 34 when viewed in the context of the entire discovery section. In holding that a demonstration that the desired materials are relevant to the subject matter of the litigation does not by itself satisfy the good cause requirement of Rule 34, we are joining every other Court of Appeals that has considered this question. Hauger v. Chicago, Rock Island & Pac. R.R.,
The appellee has cited a number of cases, mostly in district courts, in support of its contention that good cause is established by a showing of the relevancy of the documents. Heavy reliance is placed on Connecticut Mut. Life Ins. Co. v. Shields,
II
Having concluded that relevancy is not the equivalent of good cause, we must face the question whether the plaintiff presented other circumstances sufficient to justify the District Court's order. It must be recognized that, since the primary responsibility for the administration of Rule 34 is upon the district judge, he has a latitude of discretion in deciding whether a showing of good cause has been made. See Tiedman v. American Pigment Corp.,
The plaintiff has pointed out a number of circumstances which, when viewed in conjunction with the obvious relevancy of the desired statements, it claims are special and justify the District Judge's finding of good cause. First, it points out that some of the witnesses' statements were given one day after the accident. It is argued that since it is unlikely that the witnesses, when questioned at a later date, would be able to recapture their immediate perceptions of and reactions to the accident, their written statements, in addition to being extremely valuable to counsel, are irreplaceable. Indeed, it appears that the courts are unanimous in holding that a showing that the statements were made at the time of the accident satisfies the good cause requirement of Rule 34. See Reynolds v. United States,
Plaintiff also argues that it is a special circumstance that some of the witnesses are members of the defendant's train crew who are unlikely to reveal to the plaintiff facts which might fix responsibility upon their employer. Although we recognize that an employee may be subject, either consciously or unconsciously, to a feeling of loylty towards his employer which could color his statements to opposing counsel, nevertheless, it is not a sufficient showing of good cause to allege only that the written statements were made by employees of the defendant. See Hauger v. Chicago, Rock Island & Pac. R.R.,
Plaintiff's final contention is that the written statements are in the exclusive possession and control of the defendant. However, the unavailability of the statements themselves, while necessary if good cause is ever to be shown, does not by itself militate against the fact that the substance of the statements is discoverable by depositions or interrogatories, or perhaps by arranging for interviews with the witnesses.
No other special circumstances are made to appear. This is not a case where the witnesses who gave the adversary their written statements are presently unavailable, see Hilton v. Contiship Corp.,
'His counsel's natural desire to learn the details of his adversary's preparation for trial, to take advantage of his adversary's industry in seeking out and interviewing prospective witnesses, to help prepare himself to examine witnesses or to make sure that he has overlooked nothing are certainly not such special circumstances since they are present in every case.'
III
The District Judge, in granting the plaintiff's motion under Rule 34, denied that these written statements of witnesses, secured by a claim agent before the commencement of any litigation, were protected from discovery by the work-product doctrine of Hickman v. Taylor,
Taking the view that the District Court's order under Rule 34 was incorrect, the judgment against the defendant for its violation must be
Reversed.
Notes
'Rule 34. Discovery and Production of Documents and Things for Inspection, Copying, or Photographing
'Upon motion of any party showing good cause therefor and upon notice to all other parties, and subject to the provisions of Rule 30(b), the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 26(b) and which are in his possession, custody, or control; * * *.'
A party may resort to a subpoena duces tecum, sanctioned by Rule 45, to require the other party to produce relevant documents. However, the courts have reduced the scope of this rule to that of Rule 34 by reading the good cause requirement into Rule 45. See, e.g., Connecticut Mut. Life Ins. Co. v. Shields,
The key words in Rule 35 are 'on motion for good cause shown.'
United States v. National Steel Corp.,