No. 89-96
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA, ex rel.,
BURLINGTON NORTHERN RAILROAD
COMPANY,
Relator,
-vs-
THE DISTRICT COURT OF THE EIGHTH
JUDICIAL DISTRICT OF THE STATE OF
MONTANA in and for the County of
Cascade, HONORABLE THOMAS M.
McKITTRICK, Judge thereof,
Respondent.
ORIGINAL PROCEEDING:
COUNSEL OF RECORD:
For Relator:
James A. Robischon (argued); Charles Deardm; Murphy,
Robinson, Heckathorn & Phillips, ~ a l i s ~ e l l 7
Montana
For Respondent:
Terry Trieweiler (argued), Whitefish, Montana
Submitted: J U ~ Y 1989
7,
Decided: September 19, 1989
Filed:
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
This application for a writ of supervisory control
arises from an order by the District Court of the Eighth
Judicial District, Cascade County, Montana. We accept juris-
diction of this application, and after receipt of briefs and
oral argument, we order supervisory control.
Burlington Northern Railroad Company (Burlington North-
ern) was ordered by the District Court to answer certain
interrogatories and was enjoined from any further discovery
until compliance with the order. The District Court further
ordered Burlington Northern to pay plaintiff's attorney fees
and costs in bringing the motion to compel discovery. We
affirm in part and reverse in part.
This action arises from injuries received by Mr.
Gilliland, an employee of Burlington Northern Railroad in
Whitefish, Montana. On August 4, 1988, at approximately 2 : 5 0
a.m., while he was working as a utility foreman assisting a
switch crew in switching operations, Mr. Gilliland was in-
jured. A railroad car ran over him during a switching move-
ment, causing a traumatic amputation of his right leg above
the knee, and his right arm above the elbow.
On August 4, 1988, just hours after the accident, a
senior claims representative of Burlington Northern, Mr. Dale
Roos, interviewed the two crew members who were operating the
train which hit Mr. Gilliland. Mr. Roos also interviewed the
supervising yardmaster. There were no eye witnesses to the
accident. Mr. Roos also photographed the accident site that
same morning. This action was filed on August 26, 1988,
pursuant to Federal Employer's Liability Act.
On August 30, 1988, plaintiff served interrogatories,
requests for production, notice of deposition, and deposition
subpoena duces tecum on defendant. This discovery included
requests for defendant's entire investigative file, copies of
Burlington Northern's safety rules and films, photographs of
the accident site, investigative reports, and witness
statements.
On October 12, 1988, plaintiff deposed several witness-
es, including Mr. Roos, and the Burlington Northern employees
whose statements had been taken immediately after the acci-
dent. The subpoena duces tecum, which had been issued to Mr.
Roos, requested that he bring to the deposition his entire
investigative file. The subpoena duces tecum specifically
requested a number of items, including the photos of the
accident site, and the witness statements he had taken.
However, Mr. Roos did not bring the photographs to the depo-
sition, stating rather that he had turned them over to defen-
dant's lawyers. Mr. Roos did bring his file to the
deposition, but the witness statements and a four-page list
of safety materials with Mr. Roos' handwritten notations, had
been removed. At the deposition he did produce handwritten
statements of the Burlington Northern employees.
On October 17, 1988, defendant served interrogatories
and requests for production on plaintiff. Plaintiff's depo-
sition by Burlington Northern was scheduled for November 10,
1988. During the late afternoon of November 9, plaintiff's
attorney called defendant to request that the photographs of
the accident scene be brought to the deposition. Co-counsel
of the attorney who would be taking plaintiff's deposition
agreed that the photos would be brought to the deposition.
On November 10 the plaintiff and counsel for both par-
ties arrived for the deposition. Plaintiff's counsel re-
quested that plaintiff be allowed to view the photos prior to
the commencement of the deposition. Counsel for Burlington
Northern stated that he had not been informed that the prior
viewing of the photographs was a condition to plaintiff's
deposition. Counsel for Burlington Northern agreed to allow
plaintiff to view the photos during a recess or after the
deposition had been concluded, but he refused to delay com-
mencement of the deposition while the plaintiff viewed the 49
photographs in question. Plaintiff's counsel refused to
begin the deposition before the plaintiff had the opportunity
to view the photographs of the accident site. As a result of
this disagreement, plaintiff's counsel would not allow the
deposition to proceed. Counsel for Burlington Northern
emphasized that he would subpoena plaintiff for a future
deposition.
On the day following the aborted deposition plaintiff
filed a motion to compel discovery and for sanctions. Plain-
tiff's motion to compel requested that the court order pro-
duction of defendant's entire investigative file, disclosure
of the identity of all experts consulted by defendant, copies
of Burlington Northern safety rules and films, all photo-
graphs of the accident scene taken the morning of the injury,
and all statements of crew members, employees, or witnesses.
The motion included a request that defendant be prohibited
from conducting any further discovery until ten days after
compliance with the order, and also included a request for
expenses incurred in bringing the motion to compel. On
December 2, 1988, defendant filed a motion to compel discov-
ery of answers to interrogatories and requests for production
which had been served on plaintiff on October 17, 1988, but
had not been answered. Defendant also requested a protective
order regarding the identities of the non-witness experts,
the witness statements obtained by Mr. Roos, the identity of
Burlington Northern employees whose earnings were requested,
and all privileged information contained in its file.
On December 5, 1988, the court heard argument on these
motions and ordered further briefing on whether defendant
should be compelled to disclose identities of non-witness
experts and witness statements. On February 10, 1989, the
court issued an order compelling defendant to identify its
non-witness experts and to disclose the witness statements
taken by Mr. Roos. The court granted a partial protective
order to defendant by ordering that certain employee earnings
be disclosed, but keeping the employee identities confiden-
tial. While the court ordered that the photographs and
catalog of safety files be produced, these items had already
been produced by defendant on December 13, 1989. The court's
order also restrained defendant from pursuing any further
discovery until ten days after it had complied with plain-
tiff's discovery requests, and ordered defendant to pay
$7,250 in attorney fees and $170 in costs to plaintiff.
Defendant seeks relief from this order through a writ of
supervisory control.
I
Is issuance of a writ of supervisory control appropriate
regarding a motion to compel discovery?
Defendant contends that a writ of supervisory control
should issue in the present case because the District Court
has ordered production of privileged material. Defendant
contends that because it asserted its right to withhold
privileged work product it is now being prevented from con-
ducting any discovery. It contends that if it is required to
disclose material which is privileged then "the harm is
complete and cannot be rectified by appeal." Thus there is
no adequate remedy.
A discovery order is interlocutory and normally not
appealable, and this Court has expressed disfavor in granting
a writ in the context of a discovery issue. State ex rel.
Guar. Ins. v. District Court (Mont. 1981), 634 P.2d 648, 38
St.Rep. 1682.
However, this Court has issued a writ in two significant
cases involving discovery issues. In Kuiper v. Dist. Court
of Eighth Judicial Dist. (Mont 1981), 632 P.2d 694, 38
St.Rep. 1288, a writ issued to determine whether the District
Court had properly granted a protective order. Kuiper in-
volved free speech issues and public policy considerations in
that the plaintiff alleged Goodyear Tire Company had covered
up a defect in a product. Kuiper also involved issues of
whether certain material was work product.
In a second case, Jaap v. District Court of Eighth
Judicial District (Mont. 1981), 623 P.2d 1389, 38 St.Rep.
280, this Court granted a writ because the District Court had
exceeded its jurisdiction by allowing defendant's attorney to
privately interview plaintiff's physicians. In Jaap the
method of discovery was incorrect.
In accepting jurisdiction to resolve a discovery dis-
pute, the court in Nat. Farmers Un. Prop. & Cas. v. Denver
D.C. (Colo. 1986), 718 P.2d 1044, 1046 stated:
Initially we note that orders pertaining to discov-
ery are interlocutory in character and generally
are not reviewable in an original proceeding.
However, we will exercise our original jurisdiction
when an order will place a party at a significant
disadvantage in litigating the merits of the case.
Regarding the appropriateness of supervisory control, in
Continental Oil v. Elks Nat. Foundation (Mont. 1989), 767
P.2d 1324, 1326, 46 St.Rep. 121, 123, this Court stated:
Supervisory control is proper to control the course
of litigation when the lower court has made a
mistake of law or willfully disregarded the law so
that a gross injustice is done and there is no
adequate remedy by appeal; also, to prevent extend-
ed and needless litigation. (Citation omitted. )
The present case involved discovery of potentially
privileged material. The discoverability of the identity of
non-witness experts presented an issue of first impression in
Montana. The sanctions imposed on defendant are severe and
exceed the authority of Rule 37, as will be discussed fur-
ther. We conclude that the order would place the defendant
at a significant disadvantage in litigating the merits of the
case and therefore accept supervisory control.
Did the District Court err in ordering disclosure of the
identity of non-witness experts?
Plaintiff's first set of interrogatories included the
following request:
INTERROGATORY NO. 7: State the names and
addresses of all experts you have retained or
conferred with concerning this action or any facts
or circumstances which are relevant to this action;
Defendants objected to this interrogatory on the basis
that it seeks the identity of experts not to be called at
trial. Defendant contends that this information is not
discoverable, basing this assertion on Rule 26 (b)(4)(B),
M.R.Civ.P., which provides:
A party may discover facts known or opinions
held by an expert who has been retained or special-
ly employed by another party in anticipation of
litigation or preparation for trial and who is not
expected to be called as a witness at trial, only
as provided in Rule 35(b) or upon a showing of
exceptional circumstances under which it is imprac-
ticable for the party seeking discovery to obtain
facts or opinions on the same subject by other
means.
Federal Rule 26(b)(4) was adopted in 1970 to standardize
discovery of expert witnesses. Montana's Rule 26(b) (4) is
identical to the federal rule. Subdivision (A) deals with
discovery of experts who will be called to testify at trial.
Subdivision (B) deals with non-witness experts. Thus the
rule itself treats the two classes differently. While iden-
tity is not mentioned in this rule, the Advisory Comments to
the rule state: "As an ancillary procedure, a party may on a
proper showing require the other party to name experts re-
tained or specially employed. . . . " 48 F.R.D. 487, 504.
Defendant contends that if the identity of experts who
have been retained but who will not be called to testify at
trial must be disclosed, then these witnesses could be con-
tacted by the adverse party, and forced to testify. Defen-
dant cites the case of Ager v. Jane C. Stormont Hospital and
Training, Etc. (10th Cir. 1980), 622 F.2d 496, 503, for the
holding that the identity of a non-witness expert is discov-
erable only upon a showing of exceptional circumstances. The
Ager court also stated that an in-camera inspection is appro-
priate to initially determine the status of the expert. The
Ager court based its holding on four policy considerations,
as follows:
. . . once the identities of retained or specially
employed experts are disclosed, the protective
provisions of the rule concerning facts known or
opinions held by such experts are subverted. The
expert may be contacted or his records obtained and
information normally non-discoverable, under rule
26 (b)(4)(B), revealed. Similarly, although perhaps
rarer, the opponent may attempt to compel an expert
retained or specially employed by an adverse party
in anticipation of trial, but whom the adverse
party does not intend to call, to testify at trial.
Kaufman v. Edelstein, 539 F.2d 811 (2d Cir. 1976).
The possibility also exists, although we do not
suggest it would occur in this case, or that it
would be proper, that a party may call his opponent
to the stand and ask if certain experts were re-
tained in anticipation of trial, but not called as
a witness, thereby leaving with the jury an
inference that the retaining party is attempting to
suppress adverse facts or opinions. Finally, we
agree with Ager's view that " [dlisclosure of the
identities of [medical] consultative experts would
inevitably lessen the number of candid opinions
available as well as the number of consultants
willing to even discuss a potential medical mal-
practice claim with counsel ..."
Ager, 622 F.2d at 503.
The Ager court further concluded that ' [tlhe party
"seeking disclosure under Rule 26(b) (4)( B ) , carries a heavy
burden" in demonstrating the existence of exceptional circum-
stances,' citing Hoover v. United States Dept. of Interior,
(5th Cir. 1980), 611 F.2d 1132, 1142 n. 13.
The holding in Ager accords with the statutory language
.
of Rule 26 (b)(4)( B ) In analyzing the recent case of Kuster
v. Harner (D. Minn. 1986), 109 F.R.D. 372, a case which
followed the Ager holding, one commentator explained that not
only the policy reasons enumerated in Ager support
non-disclosure of identity under this rule, but the language
of the rule itself indicates that identity is protected.
Rule 26(b) (4) establishes a general rule and
then carves out different standards for testifying
and non-testifying experts. The general rule does
not expressly address the disclosure of an expert's
identity. Instead, Rule 26 (b)(4)(A)(i) expressly
mandates the disclosure of a testimonial expert's
identity. The fact that the drafters thought it
necessary to treat the identity of a testimonial
expert separately may suggest that the identity of
a non-testimonial expert need not be revealed. It
seems reasonable to apply this restrictive approach
not only to the facts and opinions of a
non-testimonial expert but also to the expert's
identity because when the Advisory Committee wanted
an identity to be discovered, they provided for it
as in Rule 26 (b)(4)(A)(i).
M. Tapken, "Kuster v. Harner: A New Interpretation of Federal
Rule of Civil Procedure 26(b) (4)(R)," 33 South Dakota L.Rev.
352 (1988).
We adopt the holding in Ager because we agree with its
rationale. There are no significant cases to the contrary,
and the following cases demonstrate that the Aqer case is the
current prevailing view on whether the identity of a
non-witness expert is discoverable. (See, e.g., Detwiler v.
Gall, Landau and Young Const. Co. (Wash.App. 1986), 712 ~ . 2 d
316; Kuster; In re Sinking of Barge Ranger I (U.S. D.C. Texas
1981), 92 F.R.D. 486; In re Pizza Time Theatre Securities
Litigation (N.D. Ca. 1986), 113 F.R.D. 94).
We hold that the identity of non-witness experts is
discoverable under Rule 26 (b)(4)(B), M.R.Civ.P., only upon a
showing of exceptional circumstances. In the present case,
plaintiff made no showing of need for this information. This
portion of the District Court's order is therefore reversed.
Did the District Court err in ordering disclosure of
witness statements taken by the senior claims representative
of the defendant?
Within hours after Mr. Gilliland's accident, Mr. Dale
Roos, the senior claims representative for Burlington North-
ern, interviewed the two crew members who were operating the
train which hit Mr. Gilliland. The supervising yardmaster
was also interviewed. One of the interrogatory questions at
issue sought discovery of these interviews.
Defendant contends that this information is "work prod-
uct" and is privileged, citing Rule 26(b)(3), M.R.Civ.P.,
which states in pertinent part:
(3) Trial preparation: Materials. Subject to
the provisions of subdivision (b)(4) of this rule,
a party may obtain discovery of documents and
tangible things otherwise discoverable under
subdivision (b)(1) of this rule and prepared in
anticipation of litigation or for trial by or for
another party or by or for that other party's
representative (including his attorney, consultant,
surety, indemnitor, insurer, or agent) only upon a
showing that the party seeking discovery has sub-
stantial need of the materials in the preparation
of his case and that he is unable without undue
hardship to obtain the substantial equivalent of
the materials by other means. In ordering discov-
ery of such materials when the required showing has
been made, the court shall protect against disclo-
sure of the mental impressions, conclusions, opin-
ions, or legal theories of an attorney or other
representative of a party concerning the
litigation.
Defendant contends that these statements were taken by an
agent of defendant and were taken in anticipation of litiga-
tion. Defendant contends that this information may only be
discovered upon a showing of substantial need, and that the
substantial equivalent cannot be obtained without undue
hardship.
Plaintiff contends that these statements were simply
statements taken in the regular course of business and are
discoverable without any showing of need. He refers this
Court to our holding in Cantrell v. Henderson (1986), 221
Mont. 201, 718 P.2d 318, in which this Court concluded that a
statement made by a defendant to his insurance company,
before suit was filed, was not taken in anticipation of
litigation and was therefore not privileged.
We conclude that the holding in Cantrell controls the
present issue, allowing discovery. The rules of civil proce-
dure are premised upon a policy of liberal and broad discov-
ery. We therefore begin with the premise that these
statements are generally discoverable. The statements at
issue were taken in the regular course of the railroad's
claims department business, just as in Cantrell the disputed
statement was taken in the regular course of the insurer's
business. In the present case the contemporaneous state-
ments, taken within 24 hours of the accident, are unique and
non-duplicable and should be available to both parties. See
Southern Railway Company v. Lanham (5th Cir. 1968), 403 F.2d
119; Stout v. Norfolk & W. Ry. Co. (U.S.D.C. Ohio 1981), 90
F.R.D. 160. The modern trend favors discovery of this type
of information. For similar analyses, see Langdon v. Champi-
on (Alaska 1988), 752 P.2d 999; Nat. Farmers - - -and
Un. Prop.
- Henry Enterprises, Inc., v. Smith (Kan. 19791, 592 P.2d
Cas.;
The analysis of this issue does not end with this ini-
tial premise however, because no absolute rule can be formed
to apply to every case. We agree with the court in Klaiber
v. Orzel (Ariz. App. 19851, 714 P.2d 830, that a balance must
be sought which requires appropriate disclosure of facts,
without allowing a party to build its case on the other
party's efforts. As the Klaiber court stated:
Thus, the exercise of the trial court's discretion
in each case must involve striking a balance be-
tween ensuring that counsel for the requesting
party is not permitted to build his case on the
work done by his opponents and fostering sufficient
disclosure to enable the ultimate determination of
the issues to be based on a full development and
presentation of the relevant facts. The first
element requires a consideration of the efforts
made by counsel to obtain the same or equivalent
material. The second element requires a consider-
ation of the nature of the material and the purpose
for which it is sought.
Klaiber, 714 P.2d at 834.
In reaching this conclusion, we do emphasize that the
plaintiff here has worked diligently to develop his case so
that this statement does not apply in the present case.
While we begin with the premise that these witness
statements are taken in the ordinary course of business and
are discoverable, we recognize that in such statements there
may very well be portions which are not discoverable because
they constitute work product and are therefore privileged.
Rule 26 (b) (3) precludes inquiry into information taken
"in anticipation of litigation." This standard stems from
the theory that attorney "work product" is privileged, a
concept first articulated in Hickman v. Taylor (1947), 329
U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451. This work product
doctrine, incorporated into Rule 26(b) (3), gives a qualified
immunity to materials prepared "in anticipation of litiga-
tion," and nearly absolute immunity to the "mental impres-
sions, conclusions, opinions, or legal theories of an
attorney or other representative of a party to the litiga-
tion." Kuiper, 632 P.2d at 701.
If the present witness statements contain material which
may be privileged, the burden is on Burlington Northern, the
party opposing discovery, to make a motion to limit discovery
and to make a showing that the material sought is privileged.
If necessary, an in-camera inspection by the court is appro-
priate to determine whether certain portions of the material
should be protected. Any material which reflects attorney
thought processes is clearly not discoverable. As mentioned,
a showing that information was taken in anticipation of
litigation gives a qualified immunity.
We hold that the witness statements were taken in the
ordinary course of business and are therefore discoverable.
In the present case defendant has cited to the court no facts
which would render these statements privileged. We affirm
the District Court's order of disclosure of these statements.
Did the District Court err in enjoining defendant from
any other discovery until it had complied with the court's
discovery order?
The hearing on plaintiff's motion to compel discovery
and for sanctions was held on December 5, 1988. The court
issued its order on February 10, 1989. After ordering dis-
closure of the identity of non-witness experts, and disclo-
sure of the witness statements, the District Court enjoined
defendant from initiating any further discovery until ten
days after compliance with the order. Plaintiff's motion for
a protective order and to quash the subpoena duces tecum
which had been served on him, compelling him to appear for a
deposition, was granted. The court's order specifically
ordered that plaintiff's deposition could not be taken until
ten days after defendant had fully complied with the discov-
ery order. The court then set a trial date for September
1989.
Defendant urges that this injunction against discovery
is both inappropriate and overly severe. Defendant contends
that it did not refuse to comply with an order since no
discovery order had been issued. Defendant also contends
that the sanction is inappropriate because defendant's oppo-
sition to the motion to compel was substantially justified.
In the alternative, defendant urges that the sanction imposed
was overly severe in relation to the alleged abuses.
Rule 37, M.R.Civ.P., authorizes sanctions for discovery
abuses. Both an overview of Rule 37 and a close examination
of the statutory language aids in our understanding of how
this rule should be applied. Rule 37 of the Federal Rules of
Civil Procedure was enacted because the discovery rules are
not self-executing and the framers recognized the possibili-
ties of abuse. Our Montana Rule 37 is identical to the
federal rule. Rule 37 was enacted in 1938 and stood
virtually unchanged until 1970 when it was substantially
revised. The 1970 amendments were intended to encourage more
frequent use of sanctions for abuse. Wright, Miller, & Kane,
Federal Practice and Procedure, 5 2281, p. 756 (1970).
Rule 37, M.R.Civ.P., is divided into four subsections.
The distinctions between each section must be recognized in
analyzing the facts of the present case. Rule 37(a) provides
that a party may apply for an order compelling discovery. If
the motion is granted, the court shall award attorney fees
and costs to the moving party, "unless the opposition to the
motion was substantially justified." This same rule applies
to the party opposing the motion if the motion is denied.
Rule 37(a) ( 4 ) .
Rule 37(b) provides for sanctions for failure to comply
with an order. It is not necessary that the failure be
willful. It appears that a finding of willfulness is rele-
vant only to the choice of sanction. Societe Internationale
v. Rogers (1958), 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d
1255. In conjunction, Rules 37(a) and (b) contemplate giving
the party a second chance to comply with discovery requests
before awarding sanctions.
Rule 37(d) authorizes sanctions for 3 specific failures:
1) failure to attend at one's own deposition, 2) failure to
serve answers to interrogatories; or 3) failure to serve a
written response to a request for production. In the event
of one of these failures, a court may issue sanctions, with-
out first ordering the non-responding party to comply. No
second chance is contemplated. It is important to note this
distinction between Rule 37(b) and Rule 37(d). Under section
(b) no sanctions are available without a previous court
order; under section (dl no order is necessary, however,
sanctions are only authorized for the three enumerated
failures.
Montana has acknowledged this distinction in former
cases. See First Bank (N.A.)-Billings v. Heidema (1986), 219
Mont. 373, 711 P.2d 1384 (affirming judgment in favor of bank
entered by trial court pursuant to Rules 37 (b) and (d) for
borrower's willful refusal to attend own deposition, refusal
to produce documents, and ignoring court orders directing
compliance); Dassori v. Roy Stanley Chevrolet Co. (Mont.
1986), 728 P.2d 430, 43 St.Rep. 2113, (holding that a motion
to compel is not required as a condition to sanctions under
Rule 37(d), and affirming trial court's dismissal of com-
plaint as a sanction for failure to respond to interrogato-
ries; Thibaudeau v. Uglum (1982), 201 Mont. 260, 653 P.2d
855, (refusing to instruct trial court on remand that it
should award sanctions, noting that Rule 37(b) requires
failure to comply with an order and there had been no order).
In the present case defendant urges that sanctions were
not appropriate pursuant to Rule 37 (b) because the defendant
had not failed to comply with an order. We agree with defen-
dant's contention. We further conclude that Rule 37 (d) does
not authorize sanctions in the present case because defendant
did not violate one of the express instances in which it may
apply. Therefore, there was no provision within Rule 37
authorizing the sanction imposed in the present case.
Plaintiff contends that the language of Rule 37 need not
be strictly adhered to in determining the appropriateness of
the sanction, since the court has inherent power and broad
discretion in imposing sanctions. We decline to endorse the
doctrine of a court's inherent power to award sanctions.
Although some courts still resort to the use of inherent
powers in assessing sanctions, it is argued that the inherent
powers doctrine promotes inconsistency and uncertainty,
creates a "randomly-enforced system," and dilutes the effect
of Rule 37. See A. Behar, "The Misuse of Inherent Powers
When Imposing Sanctions for Discovery Abuse: the Exclusivity
of Rule 37," 9 Cardozo Rev. 1779, (1988). We agree with
this rationale and conclude that Rule 37 should be the source
of authority in assessing sanctions for discovery abuse.
Broad discretion is available to the trial court within the
statutory language of this rule without reference to an
inherent power theory.
Defendant contends that the sanction imposed was too
severe in relation to the abuse, and we agree. The agent of
defendant, Mr. Roos, did not bring the photographs of the
accident site to his deposition on October 12, thus disobey-
ing the subpoena duces tecum which had been issued to him on
August 30, 1988. These photographs had still not been pro-
duced by November 12 at plaintiff's deposition, although they
had been listed in a request for production on August 30.
Compounding this lack of responsiveness, the court was obvi-
ously incensed over defendant's conduct regarding the disput-
ed photographs at plaintiff's deposition. Our review of the
record however, reveals that there were no other significant
discovery abuses by defendant. We note that by October 12,
1988, only two months after the accident, plaintiff had
deposed seven of defendant's employees, including the senior
claim's representative, Mr. Dale Roos, and the employees who
were working the morning of the accident who gave a statement
to Mr. Roos. Plaintiff had also received the handwritten
statements of these crew members. On October 14, 1988,
defendant sent responses to plaintiff's interrogatories and
requests for production. Aside from the material to which
defendant interposed an objection, the answers were respon-
sive. Supplemental responses were later sent to plaintiff.
Thus within two and a half months from the date of injury,
plaintiff had obtained most of the requested discovery.
Plaintiff has not been denied information; in fact, the
amount of discovery accomplished by plaintiff in a short
amount of time demonstrates that defendant has been coopera-
tive in discovery. In contrast, nearly a year after the
accident, plaintiff, the only witness to the accident, still
has not been deposed by defendant. Prohibiting discovery is
a severe sanction, compounded in this case by the setting of
a September 1989 trial date. The record does not reveal any
egregious conduct by defendant which would warrant the severe
sanctions imposed in this case.
Justice Sheehy's dissent suggests the prohibition on
discovery was authorized as part of a protective order
pursuant to Rule 2 6 (c) so that our discussion of Rule 37 is
not appropriate. We point out that a protective order under
Rule 2 6 (c) is authorized to protect a party from annoyance,
embarrassment, oppression or undue burden or expense. We
conclude that none of these are present in this case.
We regret that experienced counsel were not able to
resolve this issue between themselves through reasonable
communication. While we understand that attorneys "in the
pit" may react in an impulsive or instinctive manner, such
disputes are best resolved between the attorneys. Unfortu-
nately a minor dispute evolved into a significant court issue
where telephone calls could have resolved the questions.
The portion of the District Court's order which enjoined
defendant from any further discovery until ten days after
compliance with the order is therefore vacated. We also
vacate the September 1989 trial date and order the court to
reset a new trial date, allowing both parties adequate time
to pursue discovery.
v
Did the District Court err in requiring defendant to pay
plaintiff's attorney fees and costs incurred in bringing the
motion to compel?
The District Court order of February 10, 1989, ordered
defendant to pay $7250 in attorney fees and $170 in costs
which were incurred by plaintiff in bringing the motion to
compel discovery.
Defendant argues that expenses may be awarded pursuant
to Rule 37 (a)(4) unless "the opposition to the motion was
substantially justified." Defendant contends that its oppo-
sition to disclosure of the identity of non-witness experts
and its opposition to disclosure of the witness statements
was substantially justified, as demonstrated by the fact that
these issues were appealed to this Court. Defendant also
contends that its opposition to disclosure of the earnings of
certain Burlington Northern employees was substantially
justified as demonstrated by the fact that the District Court
granted a partial protective order on this issue, protecting
the identities of the employees.
From the record, however, it is clear that defendant's
non-production of the photographs of the accident site at
least partially motivated both the motion to compel, and the
District Court's order. These photographs were clearly
discoverable and at no point did defendant dispute this.
However, defendant was dilatory in producing the photographs,
did not obey the subpoena duces tecum, and was uncooperative
at plaintiff's deposition by refusing to allow plaintiff to
view the photos prior to being deposed. It is understandable
that at this point, plaintiff's counsel decided that a motion
to compel discovery was necessary, and while defendant did
not oppose plaintiff's entitlement to these photos, and in
fact did deliver the photographs on December 13, 1988 prior
t o t h e c o u r t ' s o r d e r , we c o n c l u d e t h a t t h e motion t o compel
and t h e c o u r t ' s o r d e r were l a r g e l y i n r e s p o n s e t o t h e f a c t
t h a t t h e p h o t o g r a p h s were n o t produced i n a t i m e l y manner.
Thus we c o n c l u d e t h a t t h e e x p e n s e s were a p p r o p r i a t e l y awarded
p u r s u a n t t o Rule 37 ( a ) ( 4 ) .
Defendants also contend that this award may not be
a f f i r m e d b e c a u s e an award of e x p e n s e s u n d e r Rule 3 7 ( a ) ( 4 ) c a n
o n l y b e made a f t e r a h e a r i n g on t h e i s s u e , and no h e a r i n g was
held i n t h e present case.
Rule 3 7 ( a ) ( 4 ) d o e s n o t r e q u i r e a h e a r i n g b u t merely an
opportunity f o r a hearing. The r e c o r d d o e s n o t c o n t a i n a
r e q u e s t f o r a h e a r i n g b e f o r e t h e D i s t r i c t C o u r t on t h e p a r t
of t h e defendant. W a f f i r m t h e award o f a t t o r n e y f e e s and
e
costs.
W Concur:
e
Justices
Justice L.C. Gulbrandson specially concurring and dissenting.
I concur with the majority opinion insofar as the first
four issues are concerned, but I respectfully dissent to the
affirmation of the award of $7,250 in plaintiff's attorney
fees, and costs, in bringing the motion to compel discovery.
It appears that the attorney fees fixed by the District Court
clearly involved items which the majority has now ruled were
not discoverable. I would remand the issue attorney fees
and costs to the District Court for
Justice R. C. McDonough dissents:
The facts in this case clearly show a squabble which
escalated between advocates relative to discovery. Such
differences are commonplace at the trial court level and are
disposed of in the discretion of the trial judge. These
orders are interlocutory and non-appealable by our rules for
the losing party normally has an adequate remedy on appeal
from the final judgment. Here, the decisions relative to
discovery did not dispose of any major aspect of the case
with any finality, deny any substantive fundamental right
which would be prejudicial to the defendant, nor are there
any procedural entanglements. This supervision of the trial
court is not necessary or proper.
I would deny the writ.
Justice John C. Sheehy, dissenting:
The factual background of this case is one where the
railroad counsel obstructively frustrated the discovery
process. District Judge McKittrick, faced with this record
of implacable belligerence, restrained himself remarkably by
not finding the objectors in contempt and limiting his order
to a mere assessment of attorney fees and costs, which this
Court has no alternative but to sustain.
The opinion of this Court while not condoning the
obstinate blocking of discovery in this case, is at some
pains not to hurt anybody's feelings. The result is a series
of nonapplicable statements respecting discovery (especially
about Rule 37) which are not pertinent to this case, and
which can only be a source of difficulty in future cases when
problems of discovery arise.
Identity Of Experts Not To Be Called
The order of the ~istrictCourt on this subject was as
follows :
1. The defendant is ordered to respond
to plaintiff's interrogatory number 7 by
identifying by name and address those
experts it has retained and conferred
with even though it has no intention of
calling them as witnesses at the time of
trial. This information is to be in
addition to that information required by
Rule 26, M.R.Civ.P., concerning those
experts whom the defendant intends to
call as witnesses at the time of trial.
In ordering the disclosure of these
names, the court concurs with the rea-
soning set forth by the United States
District Court for the District of
Maryland, in Baki v. - Diamond Con-
BF
struction -Co. (1976T, 71 F.R.D. 179.
The opinion of this Court holds that the identity of
nonwitness experts is discoverable under Rule 26(b) ( 4 ) (B),
M.R.Civ.P., "only upon showing of exceptional circumstances."
It further holds that because the plaintiff made no showing
of need for this information that portion of the District
Court's order is reversed.
That was not the reason given by the railroad for
refusing to make such disclosure. The interrogatories, and
the responses thereto, are as follows:
Interrogatory - - 7: State the names and
No.
addresses of all experts you have re-
tained or conferred with concerning this
action or any facts or circumstances
which are relevant to this action; and
(a) state which experts you expect to
call as an expert witness at trial;
Answer: Objection must be interposed to
this interrogatory to the extent that it
seeks the identity of experts not to be
called as expert witnesses at trial as
it seeks information which constitutes
work product and seeks to invade the
mental impressions, conclusions, opin-
ions or legal theories of BN1s counsel.
With regard to expert witnesses who will
be called to testify, no decision has
been made as yet as to what such wit-
nesses, if any, will testify for BN. It
is likely that one or more of plain-
tiff's treating physician or other
medical providers will be called.
Iterrogatory - - 8:
No. Identify all per-
sons whom you have consulted as experts
but do not intend to call at a trial to
testify by giving their names and ad-
dresses and qualifications.
Answer: See objection posed to inter-
rogatory number 7.
Not only did the railroad counsel not identify experts
who will not be called, they also did not name experts they
intended to call at the time of trial.
In Detwiler v. Gall, Landau & Young construction Co.
(Wash. App. 1986), 712 P.2d 316, 319, the court warned coun-
sel about playing games with the identities of expert wit-
nesses. It said:
Although our decision precludes discov-
ery of the identities of nonwitness
experts without a showing of exceptional
circumstances, we caution counsel
against using CR 26(b) (4)(B) as a tactic
to delay discovery of an expert witness
who will be called to testify at trial.
CR 26 (e)(1) places a duty upon the
parties to seasonably supplement re-
sponses to interrogatories requesting
information about expert witnesses.
Exclusion of the expert ' s testimony is
an appropriate sanction for failure to
suppfy such supplementary responses
(cltlng cases).
The real difficulty with the decision relating to the
identity of experts not expected to be called for testimony
is that nothing - -
in this record shows that any such experts
exist. This Court may have been jockeyed into giving an
advisory opinion on a purely-imagined factual situation.
Moreover, it is quite possible in this case that the experts
consulted or retained by the employer are actually employees
of the corporation who are expert in their field. ~urlington
Northern may have, and undoubtedly does have, people in its
employ who are outstanding experts on particular subjects,
for example the engineering and operation of air brake sys-
tems on railroad cars. If such persons exist, plaintiff is
entitled to discovery as to "the identity and location of
persons having knowledge of any discoverable matter." Rule
In this case we should follow the lead of the North
Carolina Court of Appeals which suggested that with respect
to such expert witnesses not expected to be called, that the
court should hold an - camera review to consider (1) whether
in
the expert has information of discoverable matter, ( 2 ) how
the expert acquired the information, and (3) whether the
party expects to call the expert as a witness. Mack v.
Moore, et al. (C.A. N.C. 1988), 372 S.E.2d 314.
It is remarkable that the opinion does not mention in
any respect the case relied upon by the District Court on
this subject. v.
~ a k i BF ~iamondconstruction Co. (1976), 71
F.R.D. 179.
Statements Of Witnesses
The following is the request for production and re-
sponse thereto relating to this subject:
Request for Production No. 14: All
statements taken from crew members,
railroad employees, or other witnesses
and which pertain to the accident in
which Ed Gilliland was injured at the BN
railroad yard in Whitefish, Montana, on
August 4, 1988.
Response: Objection must be interposed
as to this request to the extent that it
seeks material prepared in anticipation
of litigation, work product, or trial
material. Subject to said objection,
see copies of handwritten statements of
Steve Bruce, Greg Loberg, Russ ~ i l e yand
~ o b b i e Seward produced in response to
subpoena duces tecum and attached to the
deposition of Mr. Ruse. Also see copies
of statements attached to the deposition
of Mr. Riley.
In handling this subject, the ~istrictCourt ordered:
3. Pursuant to the Montana Supreme
Court's decision in Cantreli v.
-
Henderson, 7 1 8 P.2d 3 1 8 (Mont. 1 9 8 6 ) ,
the defendant is ordered to respond to
plaintiff's request for production no.
1 4 by providing the plaintiff's attorney
a copy of all statements or transcripts
of all recorded statements taken from
crew members, railroad employees, or
other witnesses, and which pertain to
the accident in which the plaintiff was
injured at the defendant's railroad yard
in Whitefish, Montana, on August 4,
1988. This order is intended to specif-
ically apply to those recorded state-
ments taken from the defendant's crew
members by Dale Roos, the railroad's
claims agent, on the morning of August
4 , 1988, shortly after the plaintiff's
injury occurred.
There is not any doubt now that plaintiff was entitled
to these statements upon his request for production, and was
so entitled at every stage of the proceedings before us.
That issue has been decided in Cantrell v. Henderson, relied
on by the ~istrictCourt, supra. There should not have been
a moment's quibble about the right of the plaintiff to have
those statements when requested.
Instead of so holding, and ending the matter, the
plural opinion of this Court goes on gratuitously to talk
about "allowing a party to build its case on the other par-
ty's efforts.'' That subject has no relevance to the produc-
tion of statements from witnesses taken in the ordinary
course of business. This Court then goes on to conclude that
if these witness statements contain material which may be
privileged there should be some sort of - camera inspection
in
relating to them. That holding, of course, waters down
considerably the effect of Cantrell v. Henderson, and is
completely unnecessary to a decision on the subject of the
witness statements before us here.
Photographs and the Subpoena Duces Tecum
The request for photographs and the response was as
follows:
Request for production No. 10: All
photographs taken of the scene where
plaintiff was injured on August 4, 1988,
or any of the railroad cars on Track 2
at the time of plaintiff's injury.
Response: Defendant will agree to an
exchange of photographs at a mutually
agreeable time and place.
That response, filed in the District Court on October
14, 1988, was nothing less than a denial of production. The
production of discoverable photographs cannot be conditioned
upon a statement of "I will if you will."
On this subject the ~istrictCourt ordered:
2. The defendant is ordered to respond
to plaintiff's request for production
number 10 by having duplicate photo-
graphs made of all photographs taken by
the defendant or any of its agent at the
scene where plaintiff was injured or of
any of the railroad cars at the scene of
plaintiff's injury at the time of his
injury. These copies should then be
sent to the office of the plaintiff's
attorney with a bill for the costs of
duplication. In the alternative, the
defendant's attorneys can send the
negatives to plaintiff's attorney who
can have duplicate photographs made at
his own expense and then return the
negatives to the defendant.
Under Rule 34 (a), M.R.civ.P., a party may request the
production of documents, including photographs. Under Rule
34 (b), the request may be made without leave of court. The
party upon whom the request is made must serve a written
response within the time allowed under Rule 34 (b) and if the
request is objected to, "the reasons for objecting shall be
stated." The foregoing response does not include any reasons
for objecting to the production of the photographs.
Thus, it was that on November 10, 1988, when the
deposition of the plaintiff was scheduled to be taken by the
defendant, counsel for the plaintiff requested that the
photographs be presented to the plaintiff before the
deposition was commenced. Counsel for Burlington Northern
refused to allow the plaintiff to view the photos before his
deposition but stated they would be made available during a
recess or after the deposition had been concluded. This,
although since October 14, 1988, or earlier, plaintiff was
absolutely entitled under the rules to the production of the
photographs for his inspection and copying.
In fact, in this case, plaintiff was entitled to the
production of the photographs and of the statements taken of
the witnesses at a much earlier time. On August 26, 1988,
plaintiff had procured the issuance of subpoenae to witnesses
Steve Bruce, Russ Riley and Greg Loberg. Also issued were
subpoenae duces tecum for Dale Roos, Robbie Seward, John A.
Sitton, and ~ i c hWetsch. In the subpoenae duces tecum, the
witnesses were required to bring with them to their deposi-
tions, among other items, the photographs and the statements
taken of the witnesses immediately following the injury.
These were not produced at the time of the depositions,
although no written objections were filed by the railroad at
or prior to the time of the taking of the depositions. Some
of these non-party witnesses were told by counsel that as to
other statements, they did not have to produce them, and that
the witnesses could withhold those statements if they wanted
to.
The opinion makes no mention of Rule 45, and its affect
on this case. Rule 45 (dl provides the method of taking the
deposition of a witness who is not a party to the action.
The rule specifically allows subpoenae commanding the witness
to produce and permit inspection and copying of books, pa-
pers, documents and tangible things which fall within the
scope of the examination permitted by Rule 26(b).
Further, under Rule 45 (d), if a person objects to the
production of documents under a subpoena, that objection must
be made in writing within ten days after the service of the
subpoena, or at or before the time specified in the subpoena
for compliance. Only when objection is made in writing is
the party serving the subpoena not entitled to inspect and
copy the material unless an order of the court is obtained.
Rule 45 (f) provides that any person who without adequate
excuse fails to obey a subpoena duces tecum served upon him
may be deemed in contempt of court.
At the depositions of these witnesses, neither the
statements nor the photographs were produced, despite the
properly served subpoenae duces tecum.
We find in Moore's Federal Practice, Vol. 5A pg. 45-20
this statement:
A party or witness cannot refuse to obey
a subpoena that is validly served on him
on the ground that the documents called
for are irrelevant or immaterial, or the
ground of privilege against self-incrim-
ination, or on any other ground, but
should make a motion to quash within the
.
time provided in Rule 45 (b)
On this subject, Moore felt it proper to quote the
language of the late chief ~ustice inc cent in United States
v. Bryan (1950), 339 U.S. 323, 331, 70 S.Ct. 724, 94 L.Ed.
884:
Persons summoned as witnesses by compe-
tent authority have certain minimum
duties and obligations which are neces-
sary concessions to the public interest
in the orderly operation of legislative
and judicial machinery. A subpoena has
never been treated as an invitation to a
game of hare and hounds, in which the
witness must testify only if cornered at
the end of the chase. If that were the
case, then, indeed, the great power of
testimonial compulsion, so necessary to
the effective functioning of courts and
legislatures, would be a nullity. We
have often iterated the importance of
this public duty, which every person
within the jurisdiction of the Govern-
ment is bound to perform when properly
sumrnoned.
Plaintiff in this case was proceeding properly under
Rule 45 in obtaining discovery and production of documents
from a person not a party. Rule 34 deals with the discovery
or production of items from a party. Rule 45(b) provides for
a subpoena duces tecum to any person, whether or not a party,
to produce documents, papers, or other enumerated items at
the taking of a deposition or at a hearing or trial.
The record here is clear that the railroad not only
contumaciously refused to produce documents after a proper
request for production under Rule 34; it earlier allowed its
witness employees to risk contempt of court in failing to
produce those pertinent documents when their depositions were
taken after the service upon them of a subpoena duces tecum.
Severity of Sanctions
I particularly disagree with the portion of the opinion
which recites that "the record does not reveal any egregious
conduct by defendant which would warrant the severe sanctions
imposed in this case."
Apart from failing to produce the photographs in a
timely manner, the opinion states "our review of the record,
however, reveals that there were no other significant discov-
ery abuses by defendant." The opinion then goes on to excuse
the tactics of the defendant on the grounds that "most of the
requested discovery" had been supplied.
The defendant here had refused to produce statements to
which the plaintiff was clearly entitled under Cantrell v.
Henderson (Mont. 1986), 718 P.2d 318; had withheld the photo-
graphs subject to a subpoena duces tecum, at a nonparty's
deposition, and refused to produce them at the plaintiff's
deposition; and had told nonparty witnesses that they did not
have to produce their personal statements if they did not
want to. If these actions do not amount to egregious con-
duct, then this Court has raised the threshhold of egregious
conduct so high that no recalcitrant can overstep it.
The purported "sanction" reversed by the opinion is not
a sanction at all but rather a response to a motion for a
protective order granted by the ~istrictCourt.
On November 11, 1988, the plaintiff moved the court for
its order compelling the defendant to produce the evidence
that had been withheld. At the defendant's request, a hear-
ing on that motion was not scheduled until December 5, 1988.
On November 11, 1988, the plaintiff also moved the court for
a protective order enjoining the defendant from conducting
any further discovery in the case until ten days after it had
responded to plaintiff's request for discovery by producing
the information and documents that were being withheld.
Following the motion for a protective order by the
plaintiff, the defendant issued a notice of deposition on
November 28, 1988, that the deposition of the plaintiff would
be taken in Kalispell on Wednesday, December 7, 1988.
On November 21, 1988, the District Court issued its
order to show cause to Dale Roos, a nonparty witness, and to
Charles Dearden and James Robischon, the defendant's counsel,
to appear and show cause on December 5, 1988, why each of
them should not individually be held in contempt for
intentional disregard of a lawful subpoena. (The ~istrict
Court has yet to rule on this show-cause order.)
In response, on December 2, 1988, the defendant filed
in the District Court a motion to dismiss plaintiff's com-
plaint, or in the alternative, to order discovery, requiring
the plaintiff to answer interrogatories and requests for
production. In that motion the defendant ~urlinqtonNorthern
moved the court "to make an order requiring plaintiff to
respond to discovery before he undertakes any other discovery
and such other orders that the court may deem just." (The
same protective order this Court finds "severe.")
At the December 5, 1988 hearing before the District
Court, the court ruled from the bench on most of the plain-
tiff's motions relating to discovery. The court took two
issues under advisement and requested additional briefing.
One of the issues was the identification of nontestifying
expert witnesses.
After the December 5 hearing, when it was clear what
the court's ruling on photographs was going to be, the defen-
dant mailed, on December 13, 1988, the photographs to the
plaintiff's attorney.
On February 10, 1989, the court issued its written
order in this cause. In three separate paragraphs in the
order, the ~istrictCourt ordered the defendant to produce a
catalogue of safety or instructional films or brochures to
the plaintiff, to produce the photographs, and to produce the
statements taken from the witnesses immediately following the
accident by the agent of Burlington Northern. The court went
on to make two further orders that it deemed necessary in the
premises :
IT IS FURTHER ORDERED that due to the
defendant's failure to provide the
aforementioned information and evidence
prior to being ordered to do so, the
following relief is granted:
1. In the event that the statements
from Greg Loberg, Robbie Seward and
Steve Bruce suggest areas of examination
which could have been covered during
their previous depositions if their
statements had been produced when re-
quested, plaintiff may re-depose those
witnesses.
2. The defendant is enjoined from
conducting any further discovery in this
case until at least ten days after it
has complied with this order by respond-
ing to the aforementioned interrogato-
rles and producing those items it has
been ordered to produce.
Thus, the District Court, in the face of a clear record
of obstruction on the part of the railroad, responded to the
motion for a protective order and entered the requirement of
a ten-day compliance before further discovery could be had by
the defendant. The effect of the opinion is to remove this
protective order and force the plaintiff to a deposition in
spite of the power of the District Court to control the
sequence and timing of discovery. Rule 26(d), M.R.civ.P.
Thus, the discussion in the opinion regarding Rule 37
and the applicable sanctions in it has no relevance here.
This was a protective order, issued by the ~istrict Court
under Rule 26(c), M.R.civ.P., which provides:
Protective orders. Upon motion by a
party or by the person from whom discov-
ery is sought, and for good cause shown,
the court in which the action is pending
or alternatively, on matters relating to
a deposition, the court or the district
court where the deposition is to be
taken, may make any order which justice
requires to protect a party or person
from annoyance, embarrassment, oppres-
- - undue burden or expense, in--
sion, or
cluding one or more o f t h e following:
(1) that the discovery not be had;
( 2 ) that the discovery may be had only
on specified terms and conditions,
including a designation of the time or
place;
( 3 ) that the discovery may be had only
by a method of discovery other than that.
selected by the party seeking discovery;
.. . (Emphasis supplied.)
The protective order issued by the ~istrictCourt was
clearly well within its power, and should be upheld by this
Court.
ina ally, it should be noted that the so-called "sanc-
tion" is one completely within the power of the defendant
Burlington Northern to remove. All Burlington Northern had
to do was to comply with a just order of the District Court
and the limitation would be removed. If this "sanction"
constituted punishment, it is punishment which the defendant
has willingly embraced.
I agree that the plaintiff here is entitled to the
attorney fees and costs as fixed by the District Court;
otherwise I disagree with the rationale and approach of the
opinion in this cause.
After this dissent was first proposed, there was
inserted in the opinion the language that Rule 26(c) (the
protective order) does not apply because there has been no
annoyance, embarrassment, oppression, or undue burden or
expense under the Rule. That gratuitous conclusion is
completely unsupported in the record. The District Court has
ruled that plaintiff has been put to undue burden and expense
in excess of $7,000. The oppressive obstinancy of the
railroad to refuse discovery in this case fits every category
of the preconditions in Rule 26 (c) for a protective order.
Moreover, the gratuitous conclusion ignores the power of the
district court, in the interests of justice, to control the
timing and sequence of discovery under Rule 26(d). It should
be clear to all that a district court has a broad discretion
to control discovery so as to make the rules of discovery
work properly, and that is what the District Court strove to
do in this case. This opinion in itself frustrates that
process.
On August 28, 1989, while this case was still pending
in this Court, and before the opinion was in final form, a
majority of Justices, without a Court conference on the
subject, entered an order vacating the trial date of this
cause that had been set by the District Court. The result
was that the plaintiff, whose income from employment stopped
on the date of his injury, faces a further delay before he
can arrange a trial date in the District Court. In his
desperation, the plaintiff filed a motion in this Court on
September 5, 1989, offering to waive his right to all
discovery and expenses if we would simply dismiss the
application. From that viewpoint Justice McDonough is
correct in his dissent. We have not serviced justice or the
parties by the holding in this case.
/'
I concur i n t h e d i s s e n t s of Mr.'-Justice R. C. McDonough
and M r . J u s t i c e John C . Sheehy. I