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State ex rel Ford Motor Co. v. Westbrooke11/23/2004
Opinion Vote: WRIT MADE ABSOLUTE AS MODIFIED.
White, C.J., Wolff, Stith, Teitelman and Limbaugh, JJ., and Blackmar, Sr.J., concur. Russell, J., not participating.
Opinion:
I.
The trial court issued an order requiring Ford Motor Company to produce certain documents that Ford claimed were work product and protected from discovery. Ford requested a writ of prohibition to prevent the disclosure of those items and a preliminary writ was issued. The preliminary writ is made absolute as modified.
II.
Gary Anderson was driving a Ford Bronco II on October 11, 1999, when he died in a single-vehicle rollover accident. His parents, wife, and minor children sued Ford for wrongful death, alleging that the Bronco II contained design defects. The plaintiffs served interrogatories and requests for production of documents in July 2002.
Ford objected to portions of the plaintiffs' discovery requests, claiming the documents and information sought were protected as work product. In particular, Ford objected to the following on the basis that attorney-client privilege and/or the work product doctrine precluded disclosure:
Interrogatory No. 38 : dentify all independent entities and individuals who were paid by Ford to perform stability, maneuverability, crashworthiness and/or handling tests on any Ford Bronco II and the dates and titles of said tests.
Request for Production No. 34 : [Produce a]ll testing conducted by any independent entity paid by Ford to test stability, maneuverability, crashworthiness and/or handling tests on any Bronco II. Request for Production No. 173 Produce all Design Analysis files and/or Product Analysis files for all accidents investigated involving a Bronco II for the years 1984 through the present which are not currently involved in litigation. This should include, but not be limited to, all vehicle inspection requests, inspection reports, correspondence, memoranda and accident reports.
The plaintiffs filed a motion in October 2003 to compel discovery. In response, Ford argued these materials were not discoverable because work product protection was perpetual in nature and plaintiffs were not entitled to Ford's work materials, testing, and the conclusions of its consulting experts who had worked on prior Bronco II litigation.
The trial court issued an order in November 2003 requiring Ford to produce a privilege log for the documents it claimed were privileged. Ford produced privilege logs on January 15 and 22, 2004. On January 21, 2004, the plaintiffs filed a second motion to compel discovery and for sanctions. The plaintiffs filed a third motion to compel in February 2004. Ford filed supplemental and revised privilege logs on February 23, 2004.
The trial court held a hearing on March 15, 2004, on pending motions. It issued an order three days later ordering Ford to disclose all of the materials it claimed were protected. It appears from the parties' subsequent correspondence that Ford disclosed on May 3, 2004, the materials identified in its privilege logs for plaintiffs' Interrogatory No. 38 and Request for Production No. 34. A preliminary writ was issued by this Court on May 25, 2004.
III.
Rule 56(b) governs the scope of discovery. In general, " arties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . ." Rule 56.01(b)(1). Subject to the rule governing expert witnesses, "documents and tangible things otherwise discoverable under Rule 56.01(b)(1)" that were "prepared in anticipation of litigation or for trial by or for another pa
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