*1 402 P.2d 212 Petitioner, Mary ZIMMERMAN,

Geraldine

The SUPERIOR State Ari- COURT of the zona IN AND FOR the COUNTY OF MARICOPA, Stanford, Jr., Judge, R. C. Anthony Slenski, R. Slenski and Re- Albert spondents.

No. 8608.

Supreme Court of Arizona.

Bn Banc.

May 19, 1965.

Lewis, Scoville, Roca, Beauchamp Lin-& ton, Phoenix, curiae. as amicus Phoenix, for American Begam, Robert Ass’n, Lawyers Chapter, Trial Arizona *2 amicus curiae.

Lesher, Rucker, Lind- Scruggs, Kimble & Tullar, amood, Chandler, Rich- Udall & Conner, Jones, mond, Holesapple, McFall Everett, Johnson, Murphy & & Leonard Vinson, Tucson, as amicus curiae. Tucson, Rees, Browning, as & Estes amicus curiae. Phoenix, Bayham, amicus Philip

Alan as curiae. Quail, Prescott, amicus

Favour & curiae.

Kramer, Roche, Burch, Streich, Phoe- & nix, as amicus curiae.

Evans, Jenckes, Phoenix, as Kitchel & amicus curiae.

Wilson, Compton Stoops, Flagstaff, as & amicus curiae.

UDALL, Justice. original proceeding wherein This is an Zimmerman, called Geraldine hereinafter defendant, prohibition a seeks writ Maricopa Superior against Court of County proceeding further Spillman, Phoenix, respond- for Robert J. personal arising out of matter ents. An- injury brought by and Mrs. action Mr. Trask, plain- Strouss, thony Slenski, called Jennings, & hereinafter Salmon Phoenix, petitioner. tiffs. prohi

It should be noted here that 'yes’, the answer is set forth the follow- extraordinary remedy granted bition is an ing: cases,

only in rare is matter of sound per- a. The name and address of the discretion, granted by to be or withheld persons son or conducting same according court to the nature and circum the date or dates thereof. City stances of case. v. Phoenix per- b. The name and address of the Rodgers, (1934). 44 Ariz. P.2d persons upon or son re- whose question Because the raised the case quest investigation surveil- or important bar to the entire lance was conducted. procedure granted we the alternative writ c. The reason or reasons for the in- prohibition. See Di Pietruntonio vestigation surveillance, setting or Superior 84 Ariz. 327 P.2d 746 forth name and addresses (1958). person conducting same and 7, 1962, January On in- defendant was subject said matter of surveillance volved in an automobile accident in Phoe- investigation. nix, Arizona, plaintiffs. with April On plaintiffs commenced an action d. The names and addresses of all *3 County Superior Maricopa the Court of persons having original an and/or damages seeking personal injuries for and copy any writing concerning of permanent disability allegedly result as a investiga- said surveillance and/or joined of the accident. The issue was and tion.

interrogatories upon were de- served the description every e. A each and fendant. Defendant answered all inter- writing concerning investiga- said rogatories except interrogatory number or tion surveillance and name the four which states as follows: person and address of each who has any

“4. investigation Has or surveil- prepared same and the date thereof. any by person lance been conducted or dates, places any The f. times and persons including as the defendants all oral conversations concern- any herein concerning defined of the ing investigation said or surveil- plain- events and matters as set forth in along lance with the ad- name and complaint, including tiff’s but not lim- dress persons present.” of all ited phys- activities and/or ical earnings condition timely objected Defendant inter- to this and/or and/or employment prior subsequent to or rogatory, Superior however the or- Court 7, the collision of January 1962? If parts (b) dered defendant (a), to answer 88 petitioned this require Defendant an exhibit (d) produced pre- above. be at prohibition Novem- trial interrogatory, pro- for a writ of but not on

Court or on 1964, writ and the alternative duction of documents and likewise it would ber require on December prohibition display issued be absurd to a was at the be- ginning procedure of the if it required were be at the end. The is question before this Court The now question presented is therefore fundamen- injury defend- personal in a case a whether discovery procedure. tal to the entire interroga- compelled to answer ant will investigation sur- any or concerning tories The defendant contends that the infor- In by by the defendant. sought conducted mation the veillance the case by the question is raised by case at bar this at bar their interrogatory is immune is interrogatory and (1) an it refusal answer from reason that Rules Rule 33 problem product” attorney under thus a “work However, Procedure, “impeachment” 16 A.R.S. it is of Civil evidence. solely Rule as regard this matter Work Product The a view. question would be too narrow previously held that the This Court has Rule problem may arise under identical attorney an immune product” “work of documents production dealing with the discovery. Superior Dean v. fact has identified. In it been once 324 P.2d 73 A.L.R.2d 84 Ariz. phase dis- may problem arise presented question (1958). The thus covery procedure. by plaintiff here sought whether the matter problem let take us To illustrate In Dean product of defendant. the work the defense has hypothetical case where product as “mem- work this Court defined plain- disproves which surveillance movie by prepared oranda, writings briefs and allegations. Since the movie tiff’s use, related as own as well counsel for his it be potential must revealed exhibit attorney’s mental an writings reflect may present itself pre-trial? question legal or conclusions, opinions impressions, discovery procedure early in the such “in an- attorney prepared theories” bar; interrogatory the case at like ticipation litigation.” *4 deposition stage or arise in the later gives Dean pre-trial. product this to which as illustrated above at For Work ma all question immunity for include does not reason the cannot answered absolute anticipa attorney pro- by in stages discovery prepared one of these of terial that state answering held ceeding litigation. time tion Dean at the same of without preparation by counsel it for the others. It would absurd ments obtained product they trial are not work dis- do not think would fall for are into the cate- “memoranda, upon showing gory good writings of In of coverable cause. briefs Whitman, prepared by use, Ariz. Willey ex rel. counsel for his State v. own writings de- held that well as related which reflect an 370 P.2d 273 we attorney’s impressions, conclusions, ex- evidence in the form of mental monstrative opinions by prepared legal counsel for trial is not or hibits theories.” We feel it product. In fact in Dean said clear from work we the above cases and rules * * * designated photographs, sought by plaintiff “that information in the * * * privileged, discovery case not which constitute or at bar is immune from not relating product” because it contain evidence matters constitutes the “work of scope per- attorney. within the the examination of pos- are in the by 26(b)

mitted Rule Defendant calls our attention a Mis- session, party, custody, or control of they applicable. souri case which contend is copy- produced inspection and should be for In State ex rel. St. Louis Public Service upon ing photographing showing” McMillian, v. (Mo.1961) Co. S.W.2d 22 scope discovery good cause. The under prob- Court was faced with the identical matter, privi- 26(b) Rule includes “any lem we have here. The held court that the leged, subject which is mat- relevant interrogatory need not be answered because “reasonably ter” of the action or which is they if surveillance movies were taken calculated lead ad- to the would be immune from since missible evidence.” they product would constitute work however, attorney. noted, It must be think that if surveillance of the We that Missouri does not have the federal plaintiff on behalf has been conducted expressly rules and their rules define work respect the defendant with to activities product which is construed much broader accident, since the whether product protection. than Arizona’s work' observing person or be statements of the The Missouri Court said that surveillance observing person, taken'by such movies diagrams, maps drawings movies like state would dissimilar to the matter not be product” prep- were the “work of counsel by of witnesses obtained counsel ments aration of not subscribe its defense. doWe preparation for trial in Dean or the demon product to such a broad definition of work exhibits in the form of strative evidence persua- and the Missouri case is thus not Whitman, prepared counsel for trial applicable sive nor here. prod was held to be work neither of which If, example, there surveil case uct. were Defendant also cites the California bar, Superior we of Santa taken in the case Court lance movies Suezaki *5 90 County, Cal.Rptr. Cal.2d asked,1

Clara impeach tion of the tribunal is to be 373 P.2d 95 A.L.R.2d 1073 designed ment is that which is to discredit proposition witness, for the that films e., surveillance i. to reduce the effectiveness attorney. product Again are the work of testimony by of his bringing forth evidence Missouri, of like California’s definition explains why jury put which should not product Arizona is broader than the Examples work faith in testimony.2 him his or con- Because of the broader definition. impeachment of include evidence would cept product it does of in California prior statements, bias, work inconsistent attacks immunity it does enjoy the absolute witness, not prior felony on character of a con Thus, in California surveillance victions, Arizona. capacity and attacks on the of product may work be classified as observe, movies witness to recall or relate. See may they Udall, be discoverable. but still Evidence, Arizona Law of 61—§§ 69, pp. 79-112. find that foregoing reasons we For the requiring Superior Court of the order may Evidence be both substantive parts (a), (b) and to answer impeaching. hypotheti In our earlier four interrogatory number (d) plaintiff’s of movie, cal of the surveillance the movie in- for the reason that is not invalid may proof be substantive of the of product sought is the work formation injuries may or lack thereof and it be used attorney. testimony. to discredit her ex Another ample party would be Impeachment evidence' that a was intoxicated. It substantive evidence infor- next contends that the Defendant negligence contributory negligence or interroga- sought by mation party. it also serves to discredit this impeachment tory evi- would be used as therefore immune dence at the trial An examination of the Arizona discovery. cases and the Rules of Civil Procedure do prevent discovery of evidence because A brief discussion of the nature impeachment. be used for In Dean help evidence would be we said: ful here. Unlike substantive evidence n purpose per offered moving party for the “Where the has obtain- suading witnesses, prospective the trier of fact as to the truth ed statements of proposition on which the determina- should not be denied as to Wigmore Evidence, §1, p. 1. I Wigmore Evidence, 874, p. 362; on '3. 2. HI § Udall, Evidence, Arizona § Law p. 79. shortly investigator after the acci- production claims of statements plaintiff sought was filed dent. After suit obtained the adver- same witnesses copy of her statement from de- to obtain sary good cause is shown when impeach under Rule 34. sought fendant are same credibility the wit- determine the petitioner asserts that for the “Counsel 113, 324 P.2d at 84 Ariz. at nesses.” given to copy statement if a *6 770. accom- plaintiff will able to that she testimony at reconcile her modate or very Farm In- In recent case of State in the state- the trial with what she said Roberts, Company Ariz. v. 97 surance petitioner be unable that will ment and plaintiff sought (1965) to ob- 398 P.2d 671 impeachment statement for to use the by copy given of the statement tain a purposes obtain admissions or to his held the (cid:127)defendant to insurer. We testimony. in her reveal inconsistencies although it was was discoverable statement discovery procedure purpose “The that the statement to be used (cid:127)clear was Procedure Rules of Civil under our impeachment. said: We surprise and the element of to avoid it clear “In the instant case the state- be- prevent the a lawsuit from trial of impeach sought or deter- ment was to * * * We game’. ing ‘guessing credibility of defendant and mine the petitioner fail to understand how the properly court found a show- lower way or de- any be harmed could in requisite ‘good ex- ing of the cause’ to by producing a prived any defense P.2d at 674. ist.” 398 copy state- statement. If the by plaintiff hos- given ment at the The defendant contends that if surveil pital the occur- is the true version of discoverable, impeach lance evidence is its rence, petitioner be how can the plaintiff ment will be because the value lost testimony at the harmed if change story will then her to circumvent trial is consistent with the statement. impeachment They argue evidence. occasionally plaintiffs perjury that commit contains “In the event the statement injuries by .and misstate their and surveillance made which admissions give protection against petition- such movies some material the defense are er, by produc- if it must re unchanged frauds which will be lost remain these inspection, argument ing vealed before trial. A similar the statement for proper Superior upon 87 was raised Watts v. would still be admissible showing.” Ariz. P.2d In that case P.2d at (1959). 347 565 87 Ariz. at 347 plaintiff gave a statement defendant’s

92 argument This contends same was made in a Min- Defendant next that the recent 3 involving amendment nesota case almost the same fact to Uniform Rule this VI Court, A.R.S., prevents situation at as the case bar. The court 17 Sanders, sought Boldt 261 information v. Minn. 111 N.W. this case. In this production 2d concerning said: rule exhibits pre-trial it states “Counsel shall argument proceeds “Defendant’s entire except offer trial, other exhibits at the premise on the that defendant’s evi when purposes offered for plaintiffs dence which seek to elicit con * * Defendant cites the federal case which, stitutes the unblemished truth Bogatay Montour Company, Railroad disclosed, if prematurely prevent will F.Supp. (W.D.Pa.1959), in- revealing defendant jury from to the volved interrogatory a similar and' a sim- perjury plain the sham inherent in ilar regarding pre-trial. local That rule tiffs’ defendant claims. While dis require case held an- that to assumption, implicit claims such interrogatory swer the would subvert position his witnesses whose testi spirit protects im- rule which the local mony designed impeach invariably peachment matter We disclosure. monopoly have on virtue and that evi disagree with that case. We feel that attempted impeach dence to which the give interpretation this to our Uniform is, ment is exception, directed *7 without Rule protection VI a broad giving to fraudulent.” at N.W.2d class of as generally evidence described The Arizona cases beginning with Dean “impeachment” the would be to subvert Whitman, pronounce- to our most recent spirit procedures discovery of Rules clearly ment in give State Farm do not of Civil case and the Arizona Procedure immunity to evidence because it be law. impeachment purposes. used for This also in (b) accord the of interpret with Arizona Rules We Uniform Rule VI Civil 26(b) (f) pre-trial Procedure. Rule and (where defines the there is no con scope matter, of including “any as counsel ference) allow not to disclose privileged, not solely going relevant to the sub- exhibits which he is to use ject matter in pending impeachment purposes involved the for action” which would or “appears reasonably scope calculated to lead within the of to the discovery 26(b). of admissible defined evidence.” Rule This include would only requires rule that it be relevant demonstrative evidence which does not meet and not privileged. requirements 26(b) the Rule relevancy of adopted

3. Minnesota also has the Federal of Rules Civil Procedure. four, plaintiff’s interrogatory not discoverable but which swer number and therefore solely parts (b) (a), (d). be admissible in evidence for and would purposes as the record impeachment such prohibition of The alternative writ prior felony conviction of a witness quashed. some which would reveal a bias exhibit testifying. This or motive of a witness for LOCKWOOD, J., and BERNSTEIN C. solely for im- class exhibits be used concurring. McFARLAND, JJ., peachment purposes which is not discov- scope 26(b) erable under the Rule does STRUCKMEYER, Vice Chief Justice pre-trial produced not now have (dissenting). recently under Uniform Rule VI as amend- my compelled register disap- I feel interpretation think this ed. We is the the decision this case. proval only spirit one consonant with of our > discovery rules. 1961, On this under November authority Amend- of the Constitutional like, Surveillance evidence al- S, promulgated ment of Article § though useful purposes Uniform Rules of Practice for Su- circumstances, under certain also contains perior year Court of Arizona. in the Last substantive evidence relevant to the matters spring of the Court indicated its in- litigation and should therefore be dis- terest in their amendment in areas those agree coverable. We with the statement experience where need for demonstrated a Minnesota court in Boldt: change. The State Bar Association Stand- only may “Not impeaching testimony ing Committee on the for Prac- Rules subject impeachment itself, be the appeared tice and Procedure before but this case the information which Court and recommended modifi- certain plaintiff seeks bears on the fundamen- cations. These recommendations were in issue tal of the nature and extent of the part disapproved by minority members of injuries which Mrs. Boldt sustained in pre- appeared committee who also this accident. She is entitled to know sented their views. produce evidence will what October, In after extensive considera- this issue view of his denial that modifications, suggested tion

her condition is serious is attribu- publicized Court draft proposed tentative table to this accident.” modifications, requesting comment from did proposed hold lower draft that the court those interested. The We therefore ordering prohibit pre-trial con- correct in to an- not at defendant the disclosure was might of evidence which any trial, ference be used other except exhibits at the solely impeachment purposes. In re- when impeachment pur- offered for * * sponse, poses were received communications (Emphasis supplied.) Justice, the Court the Chief members of The VI(f) same true as to Rule Administrator. The reac- and the Court (üi) : tion members of Bar was that of some " * * * shall not offer [C]ounsel specifically provide that the rules should trial, exhibits at the other than those be re- impeachment evidence would not (ii) above, listed in except when quired of- to be disclosed.1 * impeachment purposes *.” fered for December, 1964, effective On the 31st of (Emphasis supplied.) Court, 8, 1965, of this March the members majority The state: question of in which the after discussion was evidence disclosure of require “It would be absurd to that an adopted order length, considered at produced pre-trial exhibit be at but not Practice. amending Rules of the Uniform interrogatory, production on or on pre-trial conference Rule VI relative to documents and likewise would be extensively The italicized was amended. require display absurd to at the be- portion VI(b) of Rule was added: ginning discovery procedure if required it were not to be at the end.” actually try attorney who will

“Each pretrial con- require discovery the case attend the shall It is indeed absurd on produce required all exhib- ference and there interrogatories if it is not later * * *. Counsel shall not pre-trial. its this Court should I do not think offer 1. For Lesher, November wrote juries, facturing Fraud to amend Rule VI so surprise posed with ment division bers of the trial bar that “Second, widespread example, only I my partners subdivision of the rule. reflect a rather a former violently Chief Justice 19, 1964, us. (5). defense we have personal on the Honorable Robert O. The Page Bight you propose them is say I Justice of this objecting and with have discussed this (A) by adding injury exaggeration no part, here, widespread longer Jesse Udall outright commonplace. cases is now as follows: now to this other mem- even * * I think against manu- a sub- of in- senti- pro- on ^[*] witness tect everything To carriage not fense to the claim.” perjury these photographic personal this branch of the and extent of their disabilities alone has the constant right casions on which such what fully require myself against to make secret people. stand is to rob is often his by alleged injured injury aware prevented justice, that and other perjury There is cases as I I have his profession based best tell by plaintiffs and undercover investigation perjury number of oc- done to my to the nature no grossest investigation lawyer plaintiffs. only outright that on the is the mis- pro- de- in

95 willy-nilly, blowing fluctuate injuries. hot and cold There are great many also a day. day from moment to moment and more unconsciously who magnify their dis- Court has some virtue. The Consistency defense, abilities. The best perhaps and course, ad- having it should be only charted a one sympathies since the of the reasonably satisfactory until trial jury hered to a injured, are with the is to conduct change. has demonstrated a need for thorough investigation into the claimed injuries possible as a basis for the refuta- disagreement I am further with tion of those investigation may claims. The decision on the merits. There are cases part be in whole inor under the direction against can that be construed both for and attorney of the for the defendant and the impeachment evidence. decision is his and his alone as to when and Their examination leaves the issue incon- under what circumstance used. it to be controversy so that in the end the clusive It emphasized should be policy that must be determined decision and there is here sought particular to be practical discovered guide- should one cate- considerations be the facts; gory is, that Supreme what the line. For a similar reason the defendant agents his know adopted about the in- Court of the United States juries by reason product” exception investigation “work or sur- opinion veillance. The Taylor, Hickman this case should 329 U.S. S.Ct. nothing concerned with It L.Ed. said more. should 451. There the Court not be broadened proper preparation to include all areas of that of a case client’s potential impeachment, each of which demands that he assemble information and present particular problems requiring a plan strategy without undue and need- his case-to-case interference; and, determination. histori- less “That is the necessary way lawyers cal in which evidence, category The of surveillance system act within framework of our only which is the issue before the jurisprudence promote justice First, has per- two obvious attributes: protect their U. clients’ interests.” 329 tains to facts which come into existence 495, 511, S. 67 S.Ct. such, after an accident occurs. As it has past Within the three or four decades nothing plain- to do with the merits of the very litigation arising substantial area Second, right tiffs of action. it almost out of negligence the automobile has case invariably concerns better facts are developed. given It special has rise to known to the than to the defend- problems. Every lawyer is aware that ant, there facts which in all fairness should be plaintiffs are per- who commit which, deliberate equally parties known both but jury in exaggeration of the extent of their nature, impos- because of their often are documents, papers, tangi- with to discover books and other

sible is, therefore, certainty. things good It a fertile field ble when cause is shown. magnification, treating one, and a field majority, for fraud the two rules as parties always good not on even terms. in effect held in which are has that there policy against strong public Because cause to disclose evidence. parties perjury disagree. and because the are often I presentation in the even terms opinion my justice It is can be best *10 extent of a evidence exact by requiring a to served defendant disclose required injuries, a not be defendant should Rule 33 has been a under whether there surveillance.2 to disclose the results of his Then, investigation. or an surveillance does not there is em- only good why This mean but a can shown cause be if theory” litigation “sporting plaintiff braced it be to would to a with- unfair nothing plaintiff which reports is hidden from the hold the results surveillance Rather, I already call permit party he does know. to in- photographs, would I defendant “sporting” from a take 34. should not be voke Rule Good cause ability surprise simple a dishonest witness there- as on the considered established perjury. by leaving plaintiff the cause vulnerable does not proposition that know aptly said, witness As has been “An honest sur- defendant’s what the results of the realistically dishonest one might cannot discredited and a veillance show for ought to be.” how well ad- reason can be but to discover prepared its case on counsel verse has majority factual situation treat this known to already better matter which application under arises out of an There plaintiff than defendant. A involving dis- also Rule Rule as discre- should be the sound matter left to Rule 33 ad- tinction should observed. judge. the trial tion of pro- party. Rule dressed to the adverse copy may inspect or I dissent. party foregoing that a reasons vides For the argument dis- manufactured that not that a 2. The is made asserted open man- be- this When close leaves surveillance evidence. testimony perjured comes a threat to the administration ufactured due justice, think this then be considered I it should defendant’s witnesses. per- I, implausible. highly to be whether an unrealistic automatic disclosure thirty required. sonally, instance know of no years attorney it has been in which