Opinion
42577.
ARGUED FEBRUARY 8, 1967.
DECIDED JULY 6, 1967. REHEARING DENIED JULY 26, 1967.
Action under Federal Employers' Liability Act. Fulton Superior Court. Before Judge Moore.
Alston, Miller Gaines, William B. Spann, Jr., Michael A. Doyle, Kenneth W. Gilchrist, for appellant.
Lewis, Lewis Cagle, T. J. Lewis, Jr., for appellee.
1. Statements taken by the defendant railroad's claim agents of persons having knowledge concerning the occurrence which resulted in the death of the plaintiff's husband, though taken under the direct supervision of the railroad's division counsel, and with the view to the preparation of a defense of possible legal action against the railroad on account of such occurrence, were not a part of the attorney's work product and were subject to discovery under the provisions of Code Ann. § 38-2109 (a).
2. In order for a party to be entitled to have produced, for his inspection and copying, original documents in the possession of the opposite party under the provisions of Code Ann. § 38-2109 (a), good cause must be shown, but where, as in this case, there is nothing in the record to disclose the contrary, it is presumed that there was sufficient evidence before the trial court to sustain his finding and order.
3. The grounds of special demurrer, the overruling of which is enumerated as error, were without merit, and the court did not err in overruling them.
ARGUED FEBRUARY 8, 1967 — DECIDED JULY 6, 1967 — REHEARING DENIED JULY 26, 1967 — CERT. APPLIED FOR.
Mrs. Emily B. Gause sued the Atlantic Coast Line Railroad Company for damages, under the Federal Employers' Liability Act, on account of the death of her husband, Arthur F. Gause, who was alleged to have died as a result of injuries sustained when he was run over by the cars of one of the defendant's trains in its railroad yard at Charleston, S.C. In her petition she alleged that the defendant was guilty of certain acts of negligence which proximately resulted in her husband's death. The defendant filed general and special demurrers to the petition and an answer in which it denied the substantial allegations of the plaintiff's petition. After the defendant had filed its answer, the plaintiff served the defendant with 19 interrogatories pursuant to the provisions of Code Ann. § 38-2108 (Ga. L. 1959, pp. 425, 437). In the interrogatories the plaintiff asked the defendant, among other things, if there were any eyewitnesses to the occurrence which resulted in the death of the plaintiff's husband; if there were, to state the name, address and position with the defendant, if employees, of such eyewitnesses, and in Interrogatory No. 7, the defendant was requested, pursuant to the provisions of § 38-2109 (b) of the Annotated Code, to attach a copy of any statement or statements made by such eyewitnesses to its answer to the interrogatories. In Interrogatory No. 8, plaintiff asked for the names of all persons known by the defendant, whether eyewitnesses or not, who have any information regarding the fatal injuries sustained by the plaintiff's husband, and in Interrogatory No. 9, plaintiff requested, pursuant to the provisions of § 38-2109 (b) of the Annotated Code, that copies of any written statements given by such persons be attached to the defendant's answer, and in Interrogatory No. 18 (a), plaintiff requested the defendant to attach any plat or architect's drawing it might have of its railroad yard showing the area where the deceased was hurt. The defendant promptly filed objections to Interrogatories Nos. 7, 9, and 18 (a), on the ground that there is nothing in Code Ann. § 38-2109 which would require a party to attach the requested documents without a prior showing of good cause and a court order therefor, "particularly where, as in the instant case, such documents constitute the work product of defendant's attorneys."
Thereafter the defendant served the plaintiff with a response to the interrogatories in which the defendant replied that there were no eyewitnesses to the occurrence; furnished the plaintiff with the names of all persons known by the defendant to have information concerning the occurrence, and refused to make answer to Interrogatories Nos. 7, 9, and 18 (a).
In supplemental interrogatories plaintiff requested defendant to furnish a copy of the statement of one of its employees who was the person last to see the plaintiff's husband alive, and also to furnish photographs taken of the scene of the occurrence so that plaintiff might copy them. These requests were refused on the grounds that the statement and the photographs constituted the work product of the defendant's counsel.
Plaintiff then filed a motion with the court for an order to the defendant to produce and permit the inspection and copying or photographing of the statements of two named employees of the defendant and of the photographs taken of the area. In this motion the sole ground upon which plaintiff sought to have these documents produced was set forth in Paragraph 4 thereof as follows: "Plaintiff will not be able to obtain the same statements and/or photographs at this time, approximately ten (10) months following the fatal injuries, and, therefore, is entitled under the aforesaid Code section [38-2109] to inspect and copy the aforesaid photographs and statements, and prays for an order therefor." On this motion the judge of the superior court entered a rule nisi.
In opposition to this motion the defendant filed the affidavit of A. Baron Holmes, III, an attorney at law, licensed to practice in the states of North and South Carolina, and division counsel for the defendant railroad. In this affidavit, after stating his experience and qualifications, the affiant deposed as follows: "Immediately upon the occurrence of a serious accident, or as soon thereafter as possible I am notified by the claim agent for the Atlantic Coast Line Railroad Company of the accident and instruct and supervise the claim agent in the investigation, visit the scene of the accident and direct the preparation of plats, taking of pictures and outline the investigation to be conducted with the witnesses and the entire investigation is handled under my supervision in preparation for possible legal actions against the Atlantic Coast Line Railroad Company. On the night of May 24, 1965, I received a telephone call from Carmer L. Davis, Jr., claim agent for Atlantic Coast Line Railroad Company, advising of the accident which resulted in the death of Arthur F. Gause at Bennett Yard. Charleston County, S.C., which call was received approximately one hour after the said accident. I discussed the accident with Mr. Davis and advised and directed that the caboose and several of the attached cars which were involved be not moved and instructed Mr. Davis that since Mr. Gause had been taken to the hospital and other witnesses were not available that I would meet him early the next morning to fully investigate the case. That night or early the next morning I contacted Ronald A. Reilly, professional photographer, and had him meet me at Bennett Yard and there met Carmer L. Davis Jr., claim agent, Henry Strange, Jr., trainmaster, Fred Tumblin, general yardmaster, J. H. Harper, mechanical foreman, all of whom are in the employ of the Atlantic Coast Line Railroad Company and discussed the situation fully with these men. Mr. Reilly, the photographer, took pictures of the accident scene pursuant to directions given him by me in order that the entire locus of the accident would be shown. I instructed Mr. Carmer L. Davis, Jr., claim agent, and Mr. Henry Strange, trainmaster, as to statements to be taken from witnesses and outlined the investigation to be performed by them and to report to me for further instructions. Subsequently I had numerous conferences with Mr. Carmer L. Davis, Jr., claim agent, in regard to the investigation of the case and further instructed him in regard to his investigation. The entire investigation until suit was filed was conducted under my supervision and instructions and a complete investigation was delivered to me for the purpose of rendering a legal opinion to the Atlantic Coast Line Railroad Company, and, also, to prepare for any possible litigation in the matter. In November, 1965, I participated in further preparation and investigation of the accident in conjunction with Michael A. Doyle, Esq., of the firm of Alston, Miller Gaines, representing Atlantic Coast Line Railroad Company at Atlanta, Georgia, after suit had been filed in the matter. Mr. Doyle visited Charleston and I had Mr. Ronald A. Reilly, professional photographer, take additional pictures under my direction and Mr. Doyle's direction. Also, at my instructions Mr. Henry Tiencken, Civil Engineer, Atlantic Coast Line Railroad Company, was present and Mr. Doyle and deponent instructed Mr. Tiencken in regard to the preparation of a plat of Bennett Yard so as to show the locus of the accident in detail. Deponent and Mr. Doyle went over the case with Claim Agent Davis and issued instructions as to the taking of further statements of witnesses and investigation in preparation for the defense of the suit above entitled. That subsequent to Mr. Doyle's visit to Charleston the writer has worked closely with Mr. Davis in the proper handling of this matter in preparation for the defense of the litigation. This 11th day of March, 1966." This affidavit was filed in open court on March 17, 1966, the date set in the rule nisi for the defendant to show cause why the plaintiff's motion to produce should not be granted, and on the same date the court entered the following order: "The within and foregoing motion having come on for hearing before me, after argument of counsel, it is hereby ordered that the same be sustained and defendant is required to furnish to counsel for plat. the statements obtained from its employees.[*] Counsel for deft. has previously agreed to furnish its photographs to counsel for plat. and therefore this portion of motion is not ruled upon.
[*] named in sub-paragraphs No. (1) and (2) of said motion. This 17th day of March, 1966.
Virlyn B. Moore _________________________ Judge, F. S.C. A. J. C."
The defendant having refused to comply with the order to produce, the plaintiff on July 8, 1966, tendered to the court a rule for contempt, which was on November 21, 1966, made absolute. The appeal here is from that judgment.
The appeal in this case presents two basic and fundamental questions, namely: (1) Are the documents which the plaintiff seeks to have the defendant produce a part of the work product of the defendant's attorney, as that term is used and defined in Hickman v. Taylor, 329 U.S. 495 ( 67 SC 385, 91 LE 451)?, and (2). If such documents do not fall within the work product exclusion, has the plaintiff shown such "good cause" for their production as is required by Code Ann. § 38-2109 (a) (Ga. L. 1959, pp. 425, 438)?
1. As was observed by Judge Eberhardt in Atlantic C. L. R. Co. v. Daugherty, 111 Ga. App. 144, 150 ( 141 S.E.2d 112), Code Ann. § 38-2109 (a) is literally and in substance the same as Rule 34 of the Federal Rules of Civil Procedure. This being so, the decisions of the federal courts applying and interpreting those rules, while not absolutely binding on Georgia courts, must of necessity be looked to as highly respectable and persuasive authority. With respect to discovery, it may be said that it was in the case of Hickman v. Taylor, supra, that the concept of "work product" was first formulated. "Work product" was there broadly defined as meaning all such documents and other things as are produced as a result of "interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible" things which a lawyer in representing his client may produce as a part of his preparation to prosecute or defend his client's case. In the leading Georgia case on the subject, Atlantic C. L. R. Co. v. Daugherty, supra, p. 151 et seq., where the facts were strikingly like those here, Judge Eberhardt, writing for this court, thoroughly explored the meaning of the work product concept. In that case the plaintiff sought to have the defendant produce "statements taken from defendant's conductor, engineer, fireman, or other crewmen who operated the passenger train, and the switch engine" involved in the collision in question. The defendant objected to the production of a statement given by one of the witnesses named on the ground that it was obtained by the defendant and transmitted to its counsel in order that counsel might advise defendant as to whether there was any liability on its part and to enable such counsel to prepare defendant's case if litigation should arise out of the occurrence, and because the witness, whose statement plaintiff sought to have produced, was available, for an interview by the plaintiff and available for the taking of his deposition. This court observed there that it has been generally held that statements taken under the circumstances revealed by the motion to produce and the objections thereto are not within the work product protection. Cited as authority for that conclusion is the case of Szymanski v. New York, N. H. H. R. Co., 14 F.R.D. 82. In that case the only facts relating to the circumstances under which the statements sought to be produced were taken was that they were taken by a special representative of the railroad claim department under the jurisdiction of the railroad law department.
At least one case has been found wherein it was held that statements taken by the defendant's attorney himself were not exempt from discovery under Rule 34 as being "attorney's work product." See Durkin v. Pet Milk Co., 14 F.R.D. 385, 391 (6). Cited as authority for the ruling in that case was one of the leading and more frequently cited federal cases, Bifferato v. States Marine Corp. of Del., 11 F.R.D. 44, which was to the same effect. The opinion in the latter case clearly drew a distinction which would seem to be applicable to the facts in this case. "It is a fair inference that the procurement of the statements from crew members was not the result of any basic professional relationship between the lawyer who obtained them and the defendant, or that it required the training, skill and knowledge of a lawyer or the essential integrity implicit in the lawyer-client relationship. The services were those normally rendered by an investigator or claim agent in matters of this type and who occupy no professional relationship to the persons they represent." Bifferato v. States Marine Corp. of Del., 11 F.R.D. 44, 46.
As pointed out by Professor Wright in his hornbook on federal courts, Handbook on the Law of Federal Courts by Charles Alan Wright, § 82, page 313, et seq., a work which contains a succinct and readable summary of the authorities following and applying the ruling in the Hickman case, because of the fact that most of the questions arising in the trial courts with relation to such procedural matters as discovery are most frequently resolved in the trial court and rarely lend themselves to consideration in the later appellate stages of the cases, most of the decisions available are those rendered by district court judges and reported only in Federal Rules Decisions. This results in a great diversity of authority so that by and large in the federal system the matter has been left to adjudication on a case by case basis. Consequently authority for almost any position which may be advanced may be found. In summary, however, it may be said that most of the cases and those which we deem to be the better reasoned cases do not extend the work product immunity to statements obtained by claim agents or investigators, even though such statements are obtained more or less under the direct and active supervision of the defendant's counsel. We think it may be clearly concluded that where, as was shown by the affidavit of the attorney in this case, such statements are routinely obtained as "a standard practice of investigating accidents in which it or its servants and agents may be involved while performing its functions," Atlantic C. L. R. Co. v. Daugherty, supra, p. 153, such statements should not be excluded.
Properly interpreted the affidavit of the defendant's attorney, which we have quoted in the statement of facts, shows that as a routine custom whenever one of the defendant's trains is involved in a serious accident he is notified as soon thereafter as possible, and he thereafter instructs and supervises the claim agent in the investigation of the accident, outlining the investigation to be conducted and the witnesses to be interviewed in preparation for possible legal action against the defendant, Atlantic Coast Line Railroad Company. Paraphrasing the quotation from Bifferato v. States Marine Corp. of Del., 11 F.R.D. 44, supra, we think it is a fair inference that the statements which the plaintiff here seeks to have produced, even though they may have been taken under the defendant's attorney's direct supervision, were not obtained as a result of any basic professional relationship between him and the defendant. He does not represent the defendant upon the trial of this case, and the services of taking the statements were no more than those normally rendered by an investigator or claim agent. Such persons occupy no professional relationship to the persons they represent. We, therefore, conclude that the statements in question were not a part of the defendant's attorney's work product or to be excluded from discovery for that reason.
2. It is to be observed that initially in her interrogatories plaintiff sought to have attached to the defendant's answers copies of the same documents which are now sought to be produced under a motion for an order requiring defendant to produce "the following described documents and photographs." There may well be some doubt that plaintiff has really shifted from an effort to get copies to a seeking of the originals, but conceding that to be the effect of the motion we find no basis for reversing.
As we pointed out in Atlantic C. L. R. Co. v. Daugherty, 111 Ga. App. 144, supra, when copies are sought under Code Ann. § 38-2109 (b) the "good cause" requirement does not apply. Note some change in this provision (effective September 1, 1967), as made by Ga. L. 1967, pp. 226, 234 (§ 34 (b) of the General Civil Practice Act of 1966, as amended).
What constitutes good cause is to a very large degree left to the judgment of the trial court, as we have noted in Atlantic C. L. R. Co. v. Daugherty, 111 Ga. App. 144, supra, Sorrells v. Cole, 111 Ga. App. 136 ( 141 S.E.2d 193), and others. It may appear, as we there observed, from time factors rendering it more unlikely that a faithful reproduction of the statements can be had from the witnesses by going to them directly, or that changes have occurred in the locale, terrain or surroundings which render impossible a reproduction of similar photographs, or it may appear from other matters appearing of record, or from oral testimony delivered before the court, etc. In any event, the record here discloses that there was some kind of hearing held on the motion to require production, following which the order was entered. "It will be presumed that a judgment rendered in a court of general jurisdiction was supported by every fact essential to make it valid and binding." Chance v. Chance, 60 Ga. App. 889, 892 ( 5 S.E.2d 399). Fulton Superior Court is, of course, a court of general jurisdiction.
He who attacks a judgment has the burden of showing error. This is so well established that citation of authority is not required. If there were lacking sufficient facts and circumstances before the judge to authorize him to find the existence of good cause, this should be supported by the record on appeal. No transcript of the proceedings in connection with the hearing on the motion to require production was brought up. That, or a certificate of the judge as to what was before him for consideration, or a recital of it in the order itself, might have been sufficient to demonstrate the presence or absence of good cause. But we must presume, from failure of appellant to bring any of these for our consideration, that there was evidence before the judge of a nature ample to support his finding and judgment. Allen v. Smith, 223 Ga. 265, 266 ( 154 S.E.2d 605); Stamps Tire Co. v. Hartford Acc. c. Co., 115 Ga. App. 326 (3) ( 154 S.E.2d 656).
3. Defendant enumerates as error the overruling of three grounds of special demurrer directed to the allegations of negligence contained in Subparagraphs (d) and (e) of Paragraph 16 of the plaintiff's petition. Plaintiff alleged that the defendant was negligent (d) in failing to give notice to plaintiff's decedent that cars were being moved on track 14, and that the defendant was negligent (e) in failing to use reasonable care to furnish plaintiff's decedent with a safe place to work, having in view the other allegations of the petition. Defendant demurred in Paragraph 13 to Subparagraph (d) on the ground that it was vague and indefinite in that it was not alleged the type of notice which had been or should have been given to plaintiff's decedent, or that the defendant was in a position to give plaintiff's decedent such notice, and in Paragraph 16 of the renewed demurrers the defendant demurred to Subparagraph (e) on the ground that the same was a conclusion unsupported by any well pleaded facts, in that it was not alleged that Bennett Yard was an unsafe place for men to work, or that there was insufficient light, or that any of defendant's equipment was defective, and in Paragraph 17 of the demurrers to the same allegation of negligence on the ground that it failed to specify how or in what manner defendant failed to furnish plaintiff's decedent with a safe place to work. These grounds of demurrer were without merit, and the trial court did not err in overruling them.
Judgment affirmed. Jordan, P. J., Deen and Quillian, JJ., concur.