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United States District Court, Northern District of Illinois, E.D

November 15, 1962


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:

    "We do not mean to say that all written materials
  obtained or prepared by an adversary's counsel with
  an eye toward litigation are necessarily free from
  discovery in all cases. Where relevant and
  non-privileged facts remain hidden in an attorney's
  file and where production

  of those facts is essential to the preparation of
  one's case, discovery may properly be had. Such
  written statements and documents might, under certain
  circumstances, be admissible in evidence or give
  clues as to the existence or location of relevant
  facts. Or they might be useful for purposes of
  impeachment or corroboration. And production might be
  justified where the witnesses are no longer available
  or can be reached only with difficulty."

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 information
  for themselves, and the relatively inconsequential

  prejudice to the plaintiff, the objection to the
  motion on this ground must be overruled. * * *"

The concept and terminology of "balance" were applied by the Court of Appeals for the Seventh Circuit in Olson Rug Company v. N.L.R.B., 291 F.2d 655, at pp. 661, 662 (1961).

Other criteria which have had judicial approval as fulfilling the requirement of "good cause" are:*fn1

(1) Non-availability of witnesses — Williams v. Northern Pacific Railway Company, 30 F.R.D. 26, 28 (D.C.D.Mont., 1962) (personal injury suit):

    "Ordinarily where the witnesses are readily
  available for interrogation and examination,
  production under Rule 34 is not allowed. Where,
  however, the witnesses cannot be located or are
  widely scattered, resulting in undue difficulty,
  delay and expense in arranging for
  interviews * * * production may properly be
  required." (Emphasis supplied)

(2) Exclusive or superior opportunity for knowledge — People of the State of California v. United States et al., 27 F.R.D. 261, 262 (D.C.N.D.Cal. 1961) (action under Federal Tort Claims Act for property damage):

    "Where * * * it appears that one party has
  exclusive control over the circumstances surrounding
  an event and exclusive or superior opportunity to
  know or ascertain the facts, we believe that good
  cause exists to require that party's disclosure of
  such portions of any report as might contain the
  statements of witnesses or facts personally observed
  by the investigator even though, as here, the
  identity of potential witnesses has already been
  disclosed * * *."*fn2

(3) On the spot statements — statements of this type are closely related to and may overlap category (2) above. They afford, in addition, a basis for reliability similar to that found in the so-called "spontaneous exclamations" exception to the hearsay evidence rule. Numerous cases have commented favorably on this basis for showing "good cause." In Brown v. New York, New Haven & Hartford Railroad Company, 17 F.R.D. 324, 325 (D.C.S.D.N.Y., 1955) (action to recover damages for personal injuries) the court commented upon the unique nature of this type of writing in the following language:

    "[W]here the statements sought are ones taken at or
  about the time of the accident complained, the
  statements are unique in that they constitute the
  immediate impression of the facts. Moreover, as in
  the instant situation, defendant's employees, who
  took the statements, were on hand at the time of the
  happening, and controlled the circumstances
  surrounding the taking of the statements. In this
  instance, there can be no duplication by a deposition
  that relies upon memory, and an allegation of these
  facts, uncontroverted, is a sufficient showing of
  good cause."

In People v. United States, supra, the factor of the witness's credibility was commented on in the following manner at p. 262:

    "Not only are `on-the-spot' statements more
  reliable than later statements made months after the

  occurrence, but they relate as well to the
  credibility of witnesses originally under the control
  of and exclusively available to the adverse party."

The fading memory of witnesses provides yet an additional practical reason for permitting the discovery of this class of documents. See, e.g., Caruso v. Moore-McCormack Lines, Inc. et al., 196 F. Supp. 675, 677 (D.C.E.D.N.Y., 1961).*fn3

(4) Change in circumstances — in Colden v. R.J. Schofield Motors, 14 F.R.D. 521, 522 (D.C.N.D.Ohio, 1952) the court granted disclosure of an expert's report because it would be impossible to duplicate his study:

    "Among other things, the principles of the decision
  in Hickman v. Taylor, supra, extend to disclosures in
  rare situations having exceptional features which
  make the disclosures necessary in the interest of
  justice and where the party seeking discovery is not
  otherwise able effectively to secure the information.
  It seems to me the present situation is one calling
  for the application of such principle. Due to the
  disassembly of the automobile involved for the
  purpose of making the inspection and examination upon
  which the expert's statement was based, defendant is
  not now in position to obtain the information

After a showing of good cause, as outlined above, in camera inspection of these documents by the court would be appropriate. Olson Rug Company v. N.L.R.B., supra, and Sharon Steel Corp. v. Travelers Indemnity Co., 26 F.R.D. 113 (D.C.N.D.Ohio, 1960). The respective motions of defendants for orders of protection for the work product of counsel are hereby granted without prejudice to plaintiffs' right to move for and obtain the production of all or part of such documents upon a showing of good cause and relevancy under the standards heretofore outlined in this memorandum, and upon a showing that such documents are not entitled to any other protection or privilege.

In view of the burden and expense of producing copies of these documents under seal, the court concludes that defendants should be and hereby are relieved from producing these documents under seal at this time.

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