Peters v. Gaggos , 72 Mich. App. 138 ( 1976 )

72 Mich. App. 138 (1976) 249 N.W.2d 327

PETERS
v.
GAGGOS

Docket No. 22787.

Michigan Court of Appeals.

Decided November 8, 1976.

Sommers, Schwartz, Silver, Schwartz & Tyler, P.C., (by Byron E. Siegel), for plaintiff.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by B.I. Stanczyk and John P. Jacobs), for defendants Schwartz and Martin Place Hospital.

Sullivan, Ranger, Ward & Bone, for defendant Gaggos.

Before: BASHARA, P.J., and D.C. RILEY and R.M. RYAN,^[*] JJ.

R.M. RYAN, J.

This is an interlocutory appeal by plaintiff from the September 5, 1973, and November 6, 1974, determinations of the Oakland County Circuit Court which denied the plaintiff's motions for production of certain statements made by defendant doctors and employees of defendant hospital to an investigator for defendants' insurer.

The present appeal arose out of a malpractice action instituted by the plaintiff as administratrix of the estate of Stanley J. Peters, against the defendant doctors and defendant hospital. In her complaint, plaintiff alleged that the defendants' malpractice had caused the wrongful death of her husband.

Upon receiving defendants' answers to a set of interrogatories, the plaintiff learned that numerous statements concerning the events leading up to her husband's death had been obtained from defendant doctors and other employees of defendant hospital by an investigator employed by the defendant's insurer over 2-1/2 years before the instant suit.

Pursuant to GCR 1963, 310, plaintiff moved for a court order compelling the defendants to produce the statements made by defendant doctors to the investigator. In their answer to plaintiff's motion, defendants argued that they could not be compelled to produce such documents since they were obtained in anticipation of litigation and as such constituted defendants' work product. Therefore, under GCR 1963, 306.2, such statements were not discoverable.

It was further urged that the motion should be denied on the grounds that plaintiff had failed to show "undue hardship" or "good cause" for production and that the information contained in these statements could be obtained merely by deposing the defendants. On September 5, 1973, the court denied plaintiff's motion. Thereafter, plaintiff deposed 11 of defendant hospital's employees, including the attending physicians.

Upon learning of the Supreme Court's decision in Daniels v Allen Industries, Inc, 391 Mich. 398; 216 NW2d 762 (1974), plaintiff renewed her previous motion to produce these statements. A hearing was held on this motion and the parties thereafter submitted briefs on this question. On November 6, 1974, the trial court once again denied plaintiff's motion.

I

The sole question to be adjudicated is whether the trial court erred in denying the plaintiff's motion to compel defendants to produce certain statements apparently made in anticipation of litigation by defendant doctors to an investigator of defendants' insurer shortly after the death of plaintiff's husband.

As pointed out by Justice WILLIAMS in Daniels, supra, Michigan has a strong historical commitment to a far-reaching, open and effective discovery practice; discovery rules are to be liberally construed in order to further the ends of justice.

GCR 1963, 310.1 provides in part:

"After commencement of an action the judge of the Court in which the action is pending may, upon motion of any party and upon notice to all other parties, and subject to the provisions of sub-rule 306.2:

"(1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any reasonably designated documents, * * * or tangible things, not privileged relevant to the subject matter involved in the pending action and which are in his possession, custody, or control." (Emphasis provided.)

Citing this rule, the plaintiff argues that the lower court should have granted her motion to produce the statements made by defendant doctors to the insurance investigator. In her initial motion for production of the statements, the plaintiff set forth her reasons for seeking them:

"1. Said statements were obtained from defendant doctors by Robert Lichtman in the course of an investigation into the events underlying this present suit, which investigation was undertaken by Robert Lichtman shortly after the occurrence of these events.

"2. Robert Lichtman thus obtained statements from defendant doctors at a point in time when the recollection of these doctors concerning these events was fresh.

"3. These statements were made to Robert Lichtman before an investigation was started on behalf of plaintiff.

"4. Thus plaintiff is unable to obtain from defendants equivalent statements due to the passage of time since the occurrence of the events in controversy.

"5. Plaintiff would thus suffer an undue hardship if unable to obtain these earlier statements of the defendant doctors, particularly as this present case concerns a complex matter of medical malpractice in which an accurate account of the controverted events is necessary toward developing a full understanding of what transpired.

"6. Further, this malpractice action concerns the death of Stanley J. Peters. As Mr. Peters is deceased only defendant doctors are available to testify as to the events which caused his death.

"7. Plaintiff therefore has substantial need and good cause for requiring the production of these statements since said statements may be used to refresh the recollection of the witnesses or to impeach their testimony."

In reply to this motion, defendants argued, as they do now on appeal, that since such statements were made "in anticipation of litigation" they constituted "work product" and were protected from discovery by GCR 1963, 306.2. Rule 306.2 provides in pertinent part that:

"The court shall not order the production or inspection of any writing prepared by the adverse party, his attorney, surety, indemnitor, or agent in anticipation of litigation or in preparation for trial unless satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him undue hardship or injustice, except as provided in sub-rule 310.1(4). The court shall not order the production or inspection of any part of the writing that reflects an attorney's mental impressions, conclusions, opinions, or legal theories."

The comments to Rule 306.2, 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), 1975 Supplement at 31-32, indicate that it is uncertain whether or not the "work product" rule contained in Rule 306.2 applies to statements made by parties or knowledgeable witnesses which have potential value for impeachment or refreshing the recollection of a forgetful witness. This uncertainty arose as a result of the Supreme Court's 1965 amendment to subrule 306.2 deleting that portion of the rule which granted qualified immunity for the discovery of any "statement" obtained from a witness in anticipation of litigation.

In the aforementioned supplement, the authors suggest that the Supreme Court intended that such statements no longer be considered as "work product" within the ambit of subrule 306.2. If this Court were to adopt this interpretation, then it would only be required to determine whether the plaintiff had made a showing of good cause as required by subrule 310.1 and we would not be required to determine whether plaintiff had complied with subrule 306.2 by making the additional showing of prejudice, hardship or injustice.

Although such a construction is not unreasonable, Judge (now Justice) LEVIN in Powers v City of Troy, 28 Mich. App. 24, 37; 184 NW2d 340 (1970), felt constrained to conclude that such "statements" were probably still covered as "writings" in light of the Supreme Court's holding in Covington Mutual Insurance Co v Copeland, 382 Mich. 109; 168 NW2d 220 (1969). Under Judge LEVIN'S construction, the deletion of the word "statements" from the rule is construed as merely an attempt to avoid redundancy within the rule.

This Court is of the opinion that Judge LEVIN was correct in relying upon the language in Covington; a party attempting to obtain statements made by other parties or knowledgeable witnesses must still comply with both Rule 310.1 and Rule 306.2.

In Covington, the Court was faced with the question of whether or not a defendant could obtain a copy of a prior statement made by her to plaintiff's counsel without first making a showing of "cause". It is clear upon a reading of Covington that, contrary to the interpretation of that case in the Honigman & Hawkins supplement, supra, it does not appear that the Supreme Court was merely confronted with the limited question of whether good cause was required for the production of statements under subrule 310.1.

The question as framed by the Court was "whether the trial court erred in not requiring the moving party to show cause under GCR 1963, 310.1 and GCR 1963, 306.2 as a prerequisite to entry of a discovery order". Covington, supra, at 110.

The Supreme Court set forth both rules in Covington and analyzed the facts of that case within the framework of both rules. It becomes obvious upon a close reading of Covington that it is necessary for a party to comply with both rules before discovery will be allowed for statements previously made by the parties or by knowledgeable witnesses.

As Judge LEVIN held in the Powers case, supra, the following language of the Supreme Court in Covington clearly implies that, despite the July 1965 amendment, "statements" are still covered as "writings" by the work product Rule 306.2:

"The discretion in both rules can be moved only by ``cause shown.' * * * ``Cause shown' must at least meet the minimum requirements of both rules." Powers, supra, at 36. (Emphasis supplied.)

II

The question, then, which remains for this Court to decide is whether the plaintiff complied with both these rules by making the required showings. We hold that she did.

As we previously noted, the work product rule, GCR 1963, 306.2, requires that a party seeking the production or inspection of documents prepared by an adverse party's indemnitor must satisfy the lower court that the denial of the production of such documents would "unfairly prejudice" him or would cause him "undue hardship" or "injustice". In determining whether such "undue hardship", "unfair prejudice" or "injustice" exists Judge LEVIN set forth the following test:

"In summary, statements, except confidential statements by a client to his attorney, are not privileged. They are, however, if obtained in anticipation of litigation or preparation for trial, work product and, therefore, cloaked with a qualified immunity without regard to whether they are prepared by an attorney or by some other person and whether such other person was engaged by an attorney. Statements, other than privileged attorney-client statements, like all other work product, are subject to production upon a showing of ``cause'. Cause is simply necessity — a basic thread in the law as in all of life. And necessity is simply the inability of the requesting party otherwise to obtain the work product statement and its apparent usefulness. Upon a finding that the statement cannot otherwise be obtained and that it would be useful, the court will, assuming there is a real distinction between the ``cause' gloss on Rule 310 and the ``unfair prejudice — undue hardship — injustice' requirement of Rule 306.2, generally conclude that ``unfair prejudice' or ``undue hardship' has been shown or that it would be ``unjust' not to require that the statement be furnished." Powers, supra, at 37-38. (Emphasis supplied; footnotes omitted.)

Applying this standard to the facts herein, it becomes apparent that the plaintiff made a sufficient showing of "undue hardship". As in the Powers case, the statements in question had been taken shortly after the death of plaintiff's decedent (over 2-1/2 years before plaintiff became aware of such statements and filed the motion to produce). These statements could prove useful in resolving the dispute if they contained any admissions. In addition these statements could be used for impeachment purposes. See Powers v City of Troy, supra, at 39, Pearson v Vander Wier, 3 Mich. App. 41; 141 NW2d 685 (1966).

The value of such statements to the plaintiff is further enhanced by the nature of the action herein. As noted by the plaintiff in her motion, this is a complex malpractice action arising out of the death of plaintiff's husband. As a result, plaintiff is forced to rely on the testimony of the defendant doctors and the employees of the defendant hospital.

Furthermore, the defendants' contention that the need for such documents does not exist in view of the plaintiff's having deposed the doctors and others is without merit. In Powers the Court indicated that a deposition could not be said to be the equivalent of statements made by parties shortly after the occurrence of the event or events leading up to the action:

"[T]he requisite necessity or cause for the production of a statement is established when it was taken shortly after the event which it covers and, because of the passage of time, the memory of the witness at the time he gave the statement is likely to have been more precise than at the time discovery is sought; statements taken close to the event ``are unique in that they constitute the immediate impression of the facts * * * 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'." Powers, supra, at 39-40. (Footnotes omitted.)

Based on the reasoning in Powers, we hold the plaintiff did properly establish the requisite necessity or cause prescribed by GCR 1963, 306.2.

As we previously stated, a party, in order to be successful in an attempt to have another party produce statements or other documents pursuant to GCR 1963, 310.1(1), must also make a showing of "good cause". This requirement of "good cause" although not specifically provided for within the rule has been construed by the Supreme Court as a prerequisite to the granting of a motion for the production of documents. Daniels v Allen Industries, Inc, supra, at 405, Covington Mutual Ins Co v Coplin, supra, at 111-112, JA Utley Co v Saginaw Circuit Judge, 372 Mich. 367, 375; 126 NW2d 696 (1964).

It has been held that the "good cause" requirement is satisfied "``when the moving party demonstrates that the information sought is or might lead to admissible evidence, is material to the moving party's trial preparation, or is for some other reason necessary to promote the ends of justice'". Daniels v Allen Industries, Inc, supra, 406, Franks v National Dairy Products Corp, 41 FRD 234 (WD Texas, 1966). Since the statements sought did concern the action herein and were taken shortly after the occurrence of the events giving rise to this litigation, they clearly were material to the moving party's trial preparation.

Therefore, we hold that the "good cause" requirement of Utley has been satisfied and plaintiff has met the Franks standard as adopted by Daniels, supra.

III

While this Court recognizes that the lower court has considerable discretion in granting or denying a motion to produce, we find that the court was in error in denying plaintiff's motion for production of statements and the order denying production is hereby set aside. The cause is remanded to Oakland County Circuit Court for proceedings consistent with this opinion.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.