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COMMONWEALTH EDISON CO. v. ALLIS-CHALMERS MFG. CO.

November 15, 1962

COMMONWEALTH EDISON COMPANY ET AL., PLAINTIFFS,
v.
ALLIS-CHALMERS MANUFACTURING COMPANY ET AL., DEFENDANTS.



The opinion of the court was delivered by: Robson, District Judge.

Plaintiffs' counsel:

Defendants' counsel:

Defendants, General Electric Company, Westinghouse Electric Corporation, Allis-Chalmers Manufacturing Company, Foster Wheeler Corporation, A.B. Chance Company, Federal Pacific Electric Company, Cornell-Dubilier Electric Corporation, Carrier Corporation, Allen-Bradley Company, Ingersoll-Rand Company, Ohio Brass Company, Southern States, Inc., Square D Company, I-T-E Circuit Breaker Company, Lapp Insulator Company, Inc., McGraw-Edison Company, C.H. Wheeler Manufacturing Company, Worthington Corporation, The Clark Controller Company, Cutler-Hammer, Inc. and Wagner Electric Corporation, have filed motions and supporting affidavits claiming that certain statements made by defendants' employees to counsel and certain memoranda prepared by counsel as a result of interviews with defendants' employees are entitled to protection from discovery. In addition, defendants have requested that they be excused from producing such documents under seal as required by Pre-Trial Order No. 4.

The Court has concluded that the production of these documents should not be required at the present time, and that defendants should be excused from producing same under seal for deposit in the National Document Depository, subject to further order of court.

The privileges asserted by defendants fall into the areas of the work product doctrine and/or the privilege of confidential communications between attorney and client. Defendants have filed uncontroverted affidavits in support of these claims of privilege. These affidavits are sufficient to constitute a prima facie showing that such documents are entitled to protection from discovery by virtue of the work product doctrine. It is, therefore, unnecessary at this stage to consider defendants' claims of the attorney-client confidential communications privilege, though such consideration may be appropriate in the future if plaintiffs overcome the protection of the work product doctrine.

For plaintiffs to overcome this prima facie showing that these documents are entitled to protection from discovery based on work product, they must first convince the court that these documents are essential to the preparation of their case. The rule stated by the Supreme Court in Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 394, 91 L.Ed. 451 (1947) is controlling in this situation:

Plaintiffs in their brief admit that no showing of good cause along traditional lines has been presented. They argue that the unique character of this litigation is of itself a sufficient showing of good cause for production. The Court is of the opinion that this argument must be rejected. The National Deposition Program has the effect of permitting the individual plaintiff to interrogate on deposition many more witnesses than would probably be practical if this Program were not in effect. If any argument could be supported by reason of this aspect of the National Program, the balance would favor the defendants, not the plaintiffs.

The language of the Court of Appeals for the Third Circuit in Alltmont, et al. v. United States, 177 F.2d 971, 978 (1949) (involving consolidated libels against the United States Maritime Commission for personal injuries) provides a broad statement of the particularized showing of good cause needed to overcome the protection of work product:

    "In other words he must show that there are special
  circumstances in his particular case which make it
  essential to the preparation of his case and in the
  interest of justice that the statements be produced
  for his inspection or copying." (Emphasis supplied)

The approval of the Court of Appeals for the Seventh Circuit as to the need for showing "good cause" was expounded in Hauger v. Chicago, Rock Island & Pacific Railroad Company, 216 F.2d 501, 508 (1954) (concerning personal injuries):

    "Even though that lawyer hopes or believes, based
  upon guess, conjecture or suspicion, that a reading
  of the statements would reveal a basis for
  impeachment, or give him other valuable information,
  it has never been the practice of the courts
  generally to require the production of such
  statements under such circumstances. The courts have
  traditionally left a lawyer to his own industry aided
  by the use of depositions, interrogatories and
  subpoenas. A court is not justified in ordering a
  litigant to permit his adversary to inspect witness
  statements, which he has procured in preparing for
  trial, upon the adversary's mere surmise or suspicion
  that he might find impeaching material in the
  statements. In such a situation the rights of a
  litigant in the work-product of his lawyers and
  agents are not required to give way to an adversary's
  right of discovery. * * *"

In this District, Judge Julius J. Hoffman in United States v. Swift & Company et al., 24 F.R.D. 280, 284 (N.D.Ill., 1959) explained the needed "good cause" in terms of a balance between the need for production and the need for secrecy:

    "* * * The privilege of the lawyer's work product
  and the showing of good cause sufficient to overcome
  it are interdependent, and when, as here, the factors
  supporting the claim of privilege are weak, the
  requisite showing of good cause is correspondingly
  lessened. * * * In the last analysis, the
  determination must rest upon the balance struck in
  the particulars of a concrete case between the
  competing interests of full disclosure and protection
  for the fruits of the lawyer's labor. In the light of
  the importance of the information to the merits of
  the litigation, the difficulties confronting
  defendants' efforts to acquire the needed ...

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