Alger v. American Family Mutual Insurance

HANSON, Judge

(dissenting).

The Rules of Civil Procedure should be construed "to secure the just, speedy and inexpensive determination of every action." Following this admonition to the periphery of permissible discovery in the concurrent case of Williams v. Carr, 84 S.D. 102, 167 N.W.2d 774, this court holds a plaintiff in a tort action has a pretrial discoverable interest under RCP 33 in any policy of liability insurance carried by the defendant.

Contrariwise, defendant in the present action is denied pretrial right of discovering the report and opinion of opponent's expert witness under RCP 34. The scope of discovery permitted under RCP 33 and RCP 34 is identical. It may relate to any matter which can be inquired into under Rule 26(b). This extends to "any matter, not privileged, which is relevant to the subject matter involved in the pending action * * In State Highway Commission v. Earl, 82 S.D. 139, 143 N.W.2d 88, we held expert testimony was not privileged and could not be suppressed by reason of a contractual or proprietary interest. In my opinion, the expert's opinion and the factual foundation upon which it rests is more relevant to the subject matter involved than was defendant's policy of liability insurance in Williams v. Carr, supra.

Fundamental fairness constitutes good cause for discovery under RCP 34 in my opinion. It is inherent in the elimination of trial surprise and the ordinary expert's reports and findings are not sacrosanct and should not be immune from any method of pretrial discovery. It exists in the need to know before trial what the expert's opinion will be and what it rests upon. Henlopen Hotel Corporation v. Aetna Insurance Company, 33 F.R.D. 306 (D.C.Del.1963). The burden of showing "good cause" under this rule should not be onerous and its sufficiency should be left to the sound judicial discretion of the trial court. In this regard, it should be remembered that the main cause of action was settled by the insured before defendant was impleaded as a party.

The majority opinion indicates discovery of the expert testimony could be obtained by oral deposition under Rule 30 where the element of good cause would not be a factor. If sor we should follow the example of Colden v. R. J. Schofield Motors, D.C., 14 F.R.D. 521 which recognized the possibility that expert information might otherwise be secured by taking the oral deposition of plaintiff's expert, but in the interests of time and expedition of litigation, the expert's statement was ordered to be produced and furnished to the opposing party.

However, "good cause" is an element in Rule 30(b). It states "After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and upon notice and for good cause shown, the court in which the action is pending may make ari order that the deposition shall not be taken * * The burden of showing good cause is merely placed on the opposing party. It would appear, therefore, that "good cause" required for pretrial discovery under Rule 34. would constitute "good cause" for denying pretrial oral examination under Rule 30(b). This close relationship is pointed out and discussed in United Air Lines, Inc. v. United States, D.C., 26 F.R.D. 213:

"Rule 26 allows parties to proceed to take depositions without leave of court, while 30(b) establishes a protective function to be exercised by the court only after the examination touches upon disputed matter. Rule 34, however, allows inspection of documents within a party's control only after a court order has been secured. This disparity in method arguably may indicate that the requirements imposed by 34 are stricter than those under 26 and 30(b). Under this interpretation, a party barred from examination of a document by 34 might still be allowed to inquire as to its contents under 26. Rule 34, however, specifically incorporates the scope of examination allowed by 26(b) and is 'subject to the provisions of Rule 30(b).' This language clearly demonstrates that although the method by which the parties must proceed under each rule differs, there is no disparity between 26 and 34 in the legal standards which must be applied when a question as to the scope of permissible examination arises in a particular case. This accords with common sense, for 26 should not become a means to circumvent 34, see E. I. Du Pont De Nemours & Co. v. Phillips Petroleum Co., D.C.D.Del.1959, 23 F.R.D. 237, and the requirements of 34 should not be so strict as to force a party to use only the unreliable device of oral testimony to discover what is accurately set out on paper. What is said henceforth in reference to documents should, therefore, be considered applicable to examination upon deposition also."

I would affirm with directions to modify the order allowing discovery by conditioning it upon:

1. A mutual exchange of all experts' reports; and/or

2. A sharing of the experts' fees and expenses. In this regard, see State ex rel. Dudek v. Circuit Court for Milwaukee County, 34 Wis.2d 559, 150 N.W.2d 387.