MEMORANDUM OPINION
The plaintiff in this admiralty lawsuit seeks to recover damages for cargo loss. In support of their theory that they incurred no liability because the cause of the damages was the plaintiff’s improper design and packing of the shipped goods prior to shipment and the improp
The plaintiff’s complaint alleges that the defendant ocean carriers accepted for shipment in Italy cartons containing 2000 electronic organs in good condition which were delivered in Chicago in a seriously damaged condition. In seeking discovery to support their defenses, the defendants have sought from Mr. Frank B. Cartwright, the marine surveyor hired by the plaintiff’s underwriters, Fireman’s Fund American Insurance Companies (hereinafter referred to as “Fireman’s Fund”), all of his notes, memoranda, photogrаphs, and correspondence relating to the claim in question. The plaintiff, without objection, has turned over to the defendants all the documents in Mr. Cartwright’s file, with the exception of two documents dated May 20, and October 7, 1970. The first of these two documents is a transcription of a dictation made by Mr. Cartwright and the second is a letter based in part upon that dictation which was made by Mr. Cartwright at thе request of Mr. Frank Cristiano of Fireman’s Fund. These are the two documents at issue in this motion.
As grounds for their motions to compel production, the defendants assert that the requested documents refer to and are relevant to the insufficiency of the packing of the goods. The defendants make no showing that they cannot obtain the substantial equivalent of the materials by other means “without undue hardship.” The plaintiff contends that the defendants are not entitled to discovery of these documents without such a showing. The issue thus narrows to the question of whether the Federal Rules of Civil Procedure allow for such production only if the moving party can make a showing of undue hardship.
As amended in 1970, Rule 34(a), Fed. R.Civ.P., allows any party, without leave of court, to request another party to producе any designated document containing matters within the scope of Rule 26(b). Unlike the Rule 34 practice as it existed prior to the 1970 amendments, the moving party need not show “good cause,” but must only satisfy the requirements of Rule 26(b). C. Wright and A. Miller, 8 Federal Practice and Procedure, § 2024, at 199 (1970). It is to this new rule, therefore, that we must turn.
Rule 26(b), which was also amended in 1970, is divided into three subdivisions. Subsection (b) (1) provides the general rulе of thumb that anything is discoverable so long as it is relevant to the subject matter involved in the litigation. As the plaintiff admits that the documents sought by the defendants are relevant, they fall within the scope of discovery outlined by Rule 26(b) (1).
Subsection (b) (3) of Rule 26 provides in part:
Subject to the provisions of subdivision (b) (4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b) (1) of this rule and prepared in anticipation of litigation or for trial by or for another party or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. . . . (emphasis added)
Subsection (b) (4) provides that discovery of facts known and opinions held by experts, otherwise discoverable and “ac
As the plaintiff concedes that the dоcuments are relevant and thus otherwise discoverable by the defendants without any further showing under subsection (b) (1), its only basis for objecting to the request is that the two documents were prepared in anticipation of litigation and that Mr. Cartwright is an expert who will be called at trial. Not surprisingly, the defendants contend the contrary. The precise issue which we must resolve, therefore, is whether these twо documents were prepared in anticipation of litigation. If they were not, the defendants have satisfied the minimal burden of Rule 26(b) (1); if they were, the defendants have failed to satisfy the heavier burden for documents prepared in anticipation of litigation imposed by subsections (b) (3) and (b) (4) of Rule 26. To resolve this question, it will be necessary to resort to the history behind Rule 26(b) as amended and the pаrticular facts of this case.
The purposes behind Rule 26(b) (3) as amended can be summarized as follows from a reading of the comments thereon by the Advisory Committee on Civil Rules of the Judicial Conference of the United States. See,
Through the amendment to Rule 26, the dilemmas mentioned above were eliminated although one nevertheless remains. Courts now have no need to relate the “good cause” test of old Rule 34 with the work-product test of “undue prejudice”; specific tests are provided for defining the type of showing needed for the obtaining of trial preparation materials; and there is no longer a need to define good cause at all if the documents do not involve trial preparation. In addition, the work-product rule was expanded by subsection (b) (3) specifically to cover trial рreparation materials of non-lawyers, thus eliminating the prior confusion in this regard, compare, Alltmont v. United States,
The one enigmatic area of practice which was not ameliоrated by the amendments to Rule 26 is the problem of determining in the context of any given ease whether a report made by a non-lawyer may or may not be deemed as having been prepared in anticipation of litigation. The Advisory Committee noted in this regard that materials assembled in the ordinary course of business or for non-litigation purposes are not under the partial immunity granted by subsection (b) (3),
Although they may no longer be deemed as precise precedent, the pre1970 decisions that dealt with discovery of documents authored prior to the anticipation of litigation in the ordinary сourse of business are' instructive. While occasionally ruling in a contradictory fashion and/or requiring a showing of good cause, the courts generally have held that statements or reports made by parties and their employees in the regular course of business are not work-product and should be produced for discovery when so requested by the opposing party. See, Goosman v. A. Duie Pyle, Inc., supra; Burns v. New York Central R. Co.,
We now turn to the facts of the instant litigation in our attempt to reach a logical construction of Rule 26(b) (3) as it should be applied herein. Mr. Cartwright is a marine surveyor hired by Fireman’s Fund American Insurance Companies, plaintiff’s insurer for the damaged goods, to conduct surveys of goods after discharge at Chicago. The first requested statement of Mr. Cartwright was dictated by him on or about May 20, 1970 and is separate from other factual data, surveys, and reports concerning the damaged organs which he authored for Fireman’s Fund. The second requested document is dated October 7, 1970 and was written by Mr. Cartwright based upon his May 20th dictatiоn to Mr. Frank Cristiano who works in the subrogation division of Fireman’s Fund. In this letter, Mr. Cartwright allegedly placed his mental impressions, opinions, and conclusions regarding Thomas Organ Company’s claim. Fireman’s Fund did not pay Thomas Organ on this claim until December 23, 1970, more than two months after the letter
Based upon our review of the history of discovery practice under the Federal Rules prior to 1970 and the changes thereto outlined above, we conclude that the 1970 amendments to Rule 26 meant only to codify the rule of practice accepted by many courts that documents and investigative reports compiled by a nonattorney for an attorney and/or under his general direction in anticipation of litigation were protected from discovery absent the requisite showing of need. Although some courts had held that reports or statements acquired by a party or its agents in the ordinary course of business prior tо the commencement or anticipation of litigation could not be discoverable without some showing of need (defined in either the “good cause” or the Hickman sense), see, e. g., Guilford National Bank of Greensboro v. Southern Ry. Co.,
By apрlying to the facts at hand the above rule derived from prior decisional authority and the history behind the 1970 amendments to the discovery rules, it becomes apparent that the two requested documents which were prepared by Mr. Cartwright months prior to the time when an attorney first became involved with this claim, were prepared in the ordinary course of business and, therefore, are discоverable without any showing of need under Rule 26.
In opposition to this conclusion, the plaintiff cites Congoleum Industries, Inc. v. GAF Corp.,
If the rule of practice announced above were not accepted as controlling but rather the law were as suggested by the plaintiff, i. e., that after a claim has arisen, litigation may be deemed a contingency and any document prepared after such a claim has arisen is prepared in anticipation of litigation as concerns Rule 26(b) (3) irrespective of whether an attorney in the role of counsellor has been consulted, hardly any document authored by or for an agent of an insurance cоmpany could ever be discoverable without the showing of substantial need and undue hardship required by subsection (b) (3) of Rule 26. An insurance company by the nature of its business is not called into action until one of its insured has suffered some form of injury and has a potential claim against some other party and/or the insurer itself. At this point, the insurer must conduct a review of the factual data underlying the claim, presumably through the talents of agents or employees who summarize, the data for middle- or upper-management, the latter deciding whether to resist the claim, to reimburse the insured and seek subrogation of the insured’s claim against the third party, or to reimburse the insured and forget about the claim thereafter. The logical absurdity of the plaintiff’s position is that, under its theory, the amendments to the discovery rules which were believed to be a liberalization of the scope of discovery would be a foreclosure of discovery of almost all internal documents of insurance companies relating to the claims of insureds. We do not believe that Rule 26(b) (3) was designed to so insulate insurance companies merely because they always deal with potential claims. If this were truе, they would be relieved of a substantial portion of the obligations of discovery imposed on parties generally that are designed to insure that the fact finding process does not become reduced to gamesmanship that rewards parties for hiding or obscuring potentially significant facts.
Once we have determined that no document authored prior to the consultation of an attorney may be deemed to have been prepared in anticipation of litigation, it follows that the documents requested by the defendants for production were not prepared in anticipation of litigation, even though they may contain Mr. Cartwright’s impressions, conclusions, and opinions. Peterson v. United States, supra. The defendants’ motion for an order compelling the production of the two documents, therefore, must be granted.
Even if the defendants’ motion is not determined by application of the general rule derived above, we nevertheless believe that the identical result must be reached under Rule 26(b) (3) and (b) (4) from looking at the facts of this particular case without the aid of such general rule. The determination which we must then make is whether or not the documents sоught were prepared in anticipation of litigation.
The plaintiff asserts that these documents were not assembled in the ordinary course of a routine survey but were written “in anticipation of claims against the [defendant] vessel[s] and stevedoring interests.” The mere fact that Fireman’s Fund may have anticipated the possibility of pursuing a subrogation claim against the defendants herein is a far cry from anticipating litigation. Since Mr. Cartwright’s statement and letter were written months prior to the time Fireman’s Fund ever paid Thomas Organ Company on its claim, months prior to the time it received a subrogation agreement from Thomas Organ Company, months prior
Based upon the dates on which these documents were authored and the fact that they were written by an agent of Fireman’s Fund at the request of one of its employeеs who is not an attorney prior to the time that the insurer paid its claim to the insured and before it possessed any legal right regarding the claim at all, we conclude that these documents were, in the context of this particular case, not prepared in anticipation of litigation notwithstanding the plaintiff’s most vague and conelusory statements to the contrary, standing, as they do, without any suрport therefor through affidavits. Accordingly, the defendants do not have to meet the requirements of subsections (b) (3) and (b) (4) of Rule 26. As the plaintiff has conceded that the documents are relevant, the general requirements of Rule 26(b) (1) have been satisfied and the defendants are entitled under Rule 34 to the production of these documents.
An appropriate order will enter granting the defendants’ motion for an order compelling production.