In this dеath case, as to which litigation has been instituted in several districts other than this, plaintiff has moved under Fed.Rules Civ.Proc. rule 34, 28 U.S.C.A., for an оrder compelling the defendant, Union Carbide & Carbon Corporation, to produce and permit the inspection and copying of a written report as to the inspection made of the heating device involved in the suit by one Paul E. Peacоck, Jr., a heating expert. Said defendant objects to production of the same, claiming same to be privileged, as the opinion of' an expert, and also not obtainable as a part of the “work product” of its attorney. Hickman v. Taylor, 1946,
■ Briefly, the facts are, that a propane gas stove exploded, killing plaintiff’s decedent, in the summer camp of one Tantleff near Saranac Lake, New York. The propane was manufactured by Union Carbide & Carbon Corporation. Thе stove was manufactured by defendant Ruud Manufacturing Company, and plaintiff claims that defendant Reynolds Metals Company manufactured certain of the parts of such stove. Only a week after the accident, Union Carbide’s local attorney, one Lawler, advised Union Carbide, or its agent, to have the- equipment examined by an expert. Peacock, the expert, аrrived in a few days and made the examination in the presence of Lawler and some local plumbers. During the examination, Peacock took notes of the facts found by both him and the plumbers, later, on his own responsibility, submitting the report thereon, nоw called for on this motion. The plumbers, with the permission of Tantleff, the owner,
It would seem questionable whether this report was a part of the “work product” of defendant Union Carbide’s counsel, under Hickman, which dealt solely therewith. But it might well be a “statement of prospective witnessеs which a party has obtained for his trial counsel’s use” and therefore be considered counsel’s “work product” under Alltmont v. U. S., 3 Cir., 1950,
Thus the “necessity or justification,” Hickman,
But while plaintiff is thus entitled to discovery of the actual facts as to the equipment which bore on the fatal еxplosion, there is real question whether plaintiff is entitled to ascertain, not only such objective facts, but the subjective expert conclusions of Peacock from such facts. It should, of course, be noted that the Federal Rules do not contain the provision of the New Jersey Rules that no discovery is to be had of “any part of a writing which reflects * * * the conclusions of an expert.” N.J.R.R. 4:16-2. “Good cause therefor” must also be shown under the above rule. And not only are these conclusions nоt objective facts, which are the prime object of discovery, but such conclusions have not been rendered unavаilable to the parties, as have the physical parts of the equipment in their original condition, by their removal from the рremises to the shop of the plumbers. Nor is plaintiff at all prejudiced in preparation for trial by the lack of such exрert conclusion. He cán obtain his own expert conclusion, upon the basis of the objective facts doubtless contained in the report in question, and of course, if such facts do not so appear, this court is still open.
This, moreover, will be fаir to the expert witness, as well as to Union Carbide, in view of the property right of the expert himself, and of his client, in his own expert conclusions, which, while discoverable to the state or the
Thus an order will issue, requiring defendant Union Carbide & Carbon Corporation to producе, and permit the inspection and copying, of the report to it on the equipment in question of Paul E. Peacock, Jr., such report to have excluded therefrom, by this Court if counsel desire, the conclusions of said Peacock thereon, as distinguished from the facts as to such equipment.