Opinion
No. 37170
Decided February 21, 1962.
Depositions — Witness, not a party, may not refuse to answer — On advice of counsel that testimony irrelevant — Relevancy of records ordered produced by witness — Question for determination by judge presiding at trial.
1. A witness who is not a party to a legal proceeding has no right, upon the taking of his deposition in such proceeding, to refuse to answer any question upon the advice of his counsel merely because such counsel believes that the testimony sought is irrelevant, incompetent or immaterial. (Paragraph four of the syllabus in In re Martin, Jr., 141 Ohio St. 87, approved and followed.)
2. The question of the relevancy of records ordered to be produced by such a witness on a deposition, which question does not involve any privilege personal to the witness, is one to be decided by the judge presiding at the trial of the proceeding in which such deposition is taken and not by another judge in a proceeding in contempt against the witness because of his refusal to produce such records or by a judge or judges in a proceeding in habeas corpus following the commitment of such witness for contempt.
APPEAL from the Court of Appeals for Hamilton County.
One Frey instituted an action for damages in the Common Pleas Court of Hamilton County against The Standard Oil Company for alleged negligence in permitting a tractor-trailer outfit with a defective cooling system to be driven onto the premises of Frey's employer, as a result of which, when the radiator cap on the tractor was removed, Frey was injured by hot fluid escaping from the radiator.
Paul Oliver, terminal manager of the Cincinnati branch of Standard Oil, was called for deposition before a notary public and, in response to subpoena therefor, brought with him all the repair records in his office pertaining to the tractor involved in the incident described in Frey's petition. Under interrogation by counsel for Frey, Oliver produced all such records up to August 15, 1957, the date of the alleged accident, but, on advice of his counsel, refused to produce any such records after August 15, 1957. The notary public instructed Oliver to answer questions concerning repair records subsequent to August 15, 1957. Oliver refused to do so on advice of counsel on the ground of relevancy.
By agreement of counsel the matter was submitted to a judge of the Court of Common Pleas of Hamilton County, who ruled that Oliver should produce the records for examination and inspection by Frey's counsel and entered an order to that effect.
Subsequently, counsel for Standard Oil advised counsel for Frey and the court that Standard Oil would not produce the records. By agreement of counsel, a formal hearing inquiring into the contempt of Oliver was had before a judge of the Common Pleas Court of Hamilton County. The court found Oliver in contempt and placed him under technical custody until further order of the court.
Thereupon, Oliver sought his release from such custody by an action in habeas corpus in the Court of Appeals for Hamilton County. An appeal from a denial of the relief sought brings the cause to this court for review.
Messrs. McAfee, Hanning, Newcomer Hazlett and Mr. William Tousley Smith, for appellant, Paul Oliver.
Mr. C.R. Beirne and Mr. Edward H. Moeller, Jr., for appellee, Donald Frey.
Appellant assigns as error here the order of the Common Pleas Court requiring Oliver to produce Standard Oil's records of post-accident repairs and the denial by the Court of Appeals of the relief sought, without first examining the records to determine their relevancy in the litigation between Frey and Standard Oil.
We have here no question of privileged communications, as between physician and patient or lawyer and client, and no personal privilege such as that against self-incrimination. We are presented merely with the question of whether a witness may refuse on deposition to produce nonprivileged records, upon the advice of his counsel that the records are not relevant to the litigation in which the deposition is taken.
The question is not new in Ohio. After some unfortunate vacillation, this court laid the question to rest in In re Martin, Jr., 141 Ohio St. 87. The opinion of Judge Charles S. Bell in that case reveals a thorough study of the prior decisions of this court, other courts throughout the country, and many of the widely accepted texts on the subject. Nothing could be added by repeating that review here. The rule, which has since been followed by this court in In re Frye, 155 Ohio St. 345 (paragraph three of the syllabus), is set out in paragraph four of the syllabus as follows:
"A witness who is not a party has no legal right, upon the taking of his deposition, to refuse to answer any question, upon the advice of his attorney, merely because the attorney believes that the testimony sought is irrelevant, incompetent or immaterial. (Paragraph four of the syllabus in Ex parte Schoepf, 74 Ohio St. 1; and In re Martin, Jr., 139 Ohio St. 609, overruled.)"
The appellant here has cited to us the following language from the opinion in In re Frye, supra:
"A witness refuses to answer any question at the risk of commitment for contempt, even though an answer would infringe any personal privilege or right granted by the Constitution or statutes of the state. If committed for contempt, the witness is entitled in a habeas corpus proceeding to have the relevancy and competency of the matters inquired about in taking his deposition determined by the court. In re Martin, supra." (Emphasis added by the appellant.)
However, that language was not carried into the syllabus, and the citation of the Martin case as support therefor clearly shows the reason. Paragraph seven of the syllabus in the Martin case recites that a witness whose testimony is being taken by deposition for use in another state may refuse to answer any question, the answer to which would infringe any personal privilege granted by the Constitution or statutes of this state, and, if committed for contempt for such refusal, has the right to have the question of privilege determined by the Ohio courts in a subsequent habeas corpus proceeding. There is no question here of personal privilege so far as Oliver is concerned.
Furthermore, the interpretation attempted to be given the above-quoted language from In re Frye, supra, is not consistent with the following language used by Judge Hart in that case:
"A further claim is made by Frye that the papers and documents sought to be introduced in evidence are not the best evidence and are therefore incompetent. The answer to this claim is that it is not the function of the witness to pass upon the relevancy or competency of evidence to be offered in any court action. That is the function of the trial court."
Then, following a citation to the Martin case, Judge Hart continued:
"Furthermore, it is impossible, before the time of the trial of a case in which the deposition is taken, to determine what is the 'best evidence,' as such determination depends upon other circumstances surrounding the case appearing at the time of trial."
It is true, of course, that as a general rule evidence or proof of repairs made after an inquiry is not admissible as proof of negligence before such changes were made. But it is equally true that evidence of subsequent repair may be relevant if it tends to establish the condition of equipment or premises at the time of the accident. To permit a witness called on a deposition to decide for himself whether the particular record may or may not be relevant would be subversive of all order in judicial proceedings. As said by Mr. Justice Roberts in Bevan v. Krieger, Sheriff, 289 U.S. 459:
"In Ohio, as generally elsewhere, the officer taking a deposition does not rule upon the competency or materiality of the evidence to the issues made by the pleadings. The witness's testimony is taken subject to the reserved right to object to its admissibility at the trial. The right of objection and exclusion belongs to the parties, not to the witness."
If the records pertaining to post-accident repair are irrelevant to the litigation between Frey and Standard Oil, Standard Oil can amply protect itself by objecting to their admission in the trial of such litigation.
We do not conceive it to be our function here to determine whether the requested records are relevant, nor was it the function of the Common Pleas Court in the contempt proceeding or of the Court of Appeals in the habeas corpus action. Oliver contends that the Common Pleas judge or the Court of Appeals or both should have examined these records and determined the question of relevancy. Oliver was unwilling, however, to comply with the court's order to submit those records to Frey's counsel even at the time he requested the courts to examine them. Whether these records are relevant to the litigation between Frey and Standard Oil is a question to be determined by the judge presiding at the trial of that litigation and not by one presiding over a contempt proceeding growing out of a refusal to produce them upon the taking of a deposition or over a habeas corpus action testing the propriety of a contempt commitment.
It may be argued, and was so argued to us, that examination of these records or their required production on deposition gives an unwarranted advantage to counsel for Frey in the preparation and trial of his lawsuit against Standard Oil. With this argument we can not agree. If the records are not relevant, and the trial judge so rules, Standard Oil has in no way been hurt. They will be properly ruled out in the trial of the case. If they are considered to be relevant by the trial judge, they will be admitted in evidence, and such ruling of the court will be subject to review. In either event, Oliver, who is an employee at one branch of the Standard Oil Company and who is not a party to the litigation between his employer and Frey, is in no position to complain. On the other hand, an examination of the records only by the judge in the contempt proceeding or by the Court of Appeals in the habeas corpus proceeding would afford to the plaintiff in the underlying litigation no similar opportunity for review of a ruling by those courts that the records are not relevant.
Any discovery proceeding — and it must be conceded that pretrial depositions are in many instances fishing expeditions — has inherent in it the possibility of revealing information or data helpful to one side or another even though such information or data would be inadmissible in a subsequent trial.
Any disadvantage to one party from another's gaining such information is offset, however, by the possible advantage therefrom of arriving at the truth of the situation, which is, and must remain, the ultimate goal in determining the rights of parties in litigation.
The judgment is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS and O'NEILL, JJ., concur.
HERBERT, J., not participating.