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Lund v. St. Paul Fire & Marine Insurance Company12/6/2001
orney-client privilege, and invades the attorney work product privilege. The basis for Respondent's contentions is contained within the claims file, medical records, and existing law. (Id.)
St. Paul's objection raises legitimate issues.
The interrogatory asks it to disclose "inferences" which support its contentions. That request clearly asks for mental impressions of opposing counsel and is out-of-bounds. See Rule 26(b)(3), Mont. R. Civ. P. ("In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.")
Claimant argues that although this Court does not have a discovery rule specifically addressing "contention interrogatories," it should adopt and follow Rule 33(b), Mont. R. Civ. P., which provides:
(b) Scope--Use at Trial. Interrogatories may relate to any matters which can be inquired into under Rule 26(b), and the answers may be used to the extent permitted by the rules of evidence.
An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time.
St. Paul has set out its contentions in its Response to Petition (8/28/2001). The interrogatory propounded to it by claimant essentially asks it to lay out in detail everything it may introduce at trial to support its contentions. Moen v. Peter Kiewit Sons' Co., 201 Mont. 425, 434, 655 p.2d 482, 486 (1982), which claimant cites, holds, "The Workers' Compensation Court, while not governed by the Rules of Civil Procedure, may be guided by them . . . . [Emphasis added.]" "May" is the operative word. If the sort of interrogatory propounded in this case is within the contemplation of Rule 33(b), I decline to follow the rule.
Whether or not the sort of interrogatory propounded by claimant is countenanced under Rule 33(b), this sort of interrogatory is inappropriate in the Workers' Compensation Court. This Court's rules are tailored to resolve disputes in months, not years. Trials are typically held within 75 days after the filing deadline, and a significant number of trials are scheduled on an emergency, expedited basis which provides an even earlier trial. Speedy trials are essential: Injured workers are often without income or unable to obtain needed medical care until the Court issues a decision. This Court's rules require that the parties set out their contentions. Rule 24.5.301(1)(c) requires petitioner to set out his or her contentions. Rule 24.5.302(1)(a) requires similar disclosure by the respondent in its response. The rules of discovery of the Workers' Compensation Court provide a full and fair opportunity for all parties to discover the factual basis for those contentions. Contention interrogatories or the sort propounded by claimant lead to mischief. This sort of interrogatory is bound to lead to motions to compel based on the adequacy of the answer. When is the answer adequate? At trial, are the facts proffered by the interrogated party within those set out in answer to the interrogatory?
The request to compel further answer of the interrogatory is denied.
E. Verification
Claimant also moved to compel St. Paul to verify its answers. St. Paul has since verified its answers and the issue is moot.
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