dissenting.
This case involves more than the issues of “work product” and “attorney-client privilege.” It involves the calculated decision of AMC, with all of its resources and faced with products liability litigation, to embark on a course of action which effectively thwarted the discovery process. This course of action was taken even at the risk of incurring the severe sanctions imposed in this case. Approximately thirty-six months have passed since the first motion for discovery on November 21, 1983, and the question of whether or not certain *1331documents exist is still unresolved. Surely AMC is better able to sustain lengthy litigation than the individual plaintiffs. To reverse this case would be to condone such conduct.
In the context of this case neither the attorney-client privilege nor the work-product doctrine protects the information sought by the plaintiffs. Furthermore, this opinion departs from the requirements of Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (8th Cir.1977).
I respectfully dissent.
This case is replete with evidence of AMC’s repeated acts and attempts to avoid the discovery of documents in its possession. The process of discovery commenced on November 21, 1983. Delaying tactics on the part of AMC continued for 20 months until the directed verdict of liability was issued on June 21, 1985. That the acts on the part of AMC were willful is without question.
The constant, growing tendency of litigants to frustrate the trial discovery process such as was done by AMC is dangerous and “chilling” to a process which is geared toward a search for truth. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed.2d 451 (1947) and its progeny light the way toward open discovery. Fed.R. Civ.P. 26(b)(3) had earlier embodied the proposition that discovery should be liberally permitted subject to the control of the court to prevent abuse.
The often raised defense used to blunt persistent and piercing discovery is the defense of “work product” and “attorney privilege.” Such concepts, narrow in scope though they may be, are often attempted to be used as swords rather than shields. Upon reading this record one cannot help but conclude that AMC raised such defenses in a hope of “stonewalling” the process. In doing so it knowingly ran the risk of the sanction imposed. When the district court issued its sanction show cause order, AMC cavalierly responded that it would “stand on its position.” To respond in such manner foreclosed the trial judge’s options. It afforded him no opportunity to arrive at an accommodation or at least a sanction less than the ultimate sanction granted. That AMC may not have expected the ultimate sanction of directed liability is not necessarily to its credit. It “faced-off” with the federal court and it should now be held to the consequence of its decision.
The imposition of sanctions under Fed.R. Civ.P. 11 is an important tool used to enforce the authority of the trial court. Perhaps even more important than the actual use of sanctions is the threat of such use. The ability of the court in a given case, properly supported by the appellate court, contributes greatly to the prompt resolution of the many cases facing the federal trial courts. Within the limited confines of this case the actual use of the sanction of directed liability was appropriate.
I. WORK PRODUCT
The plaintiffs commenced the discovery process by filing notice to take depositions and describing ten “Rule 30(b)(6) categories.” 1 AMC countered with motions to quash and for a protective order. Six individuals were designated by AMC and upon the taking of their depositions AMC (1) provided the names of individuals who either knew little if anything about the facts or possessed little or no knowledge of the existence of documents sought, and (2) instructed the witnesses not to answer certain questions.
In an attempt to resolve the conflict, the district court referred the matter to the *1332magistrate. Requested sanctions were initially denied.
The plaintiffs continuing their efforts toward meaningful discovery deposed more individuals including “in-house counsel” Rita Burns. The information sought by the plaintiff consisted of the existence or nonexistence of documents in AMC’s possession reflecting (1) the computations, diagrams, and charts of the “roll tendency” of AMC’s Jeep CJ vehicles; (2) the computer modeling of the Jeep CJ vehicle; (3) the destruction of a film; and (4) the statistical tabulations on the rollovers of the Jeep CJ vehicles.
No one can doubt the relevancy and materiality of such matters if not for trial at least for discovery purposes. Indeed, AMC does not argue relevancy.
It was important to the discovery process to first of all determine the existence of such evidence. Once produced, the court could then address the issue of “work product” and “attorney-client privilege.” As indicated, AMC prevented such orderly progression of the discovery process. It was only after the judgment of liability that AMC seriously argued “work product” and “attorney-client privilege.”
The attitude of AMC is reflected in the following colloquy between the attorneys (E.C. Gilbreath-plaintiff and Tilden P. Wright-AMC).
Mr. Gilbreath: What you are telling me is that you have produced a person that you say is capable of answering in this area, but you are going to direct him not to answer?
Mr. Wright: That’s exactly what I am saying.2
Similar dialogue occurred in the deposition of Ms. Burns at pages 33, 34, 43, 49, 55, 56, 57, 58, 61, 63, 64 and 65.
AMC conceded that the refusal to answer the questions was not on the basis of work product but for the reason that, “It’s the approach that Mr. Gilbreath has taken by deposing a lawyer_” AMC on appeal changed its position to assert a violation of the “work product” rule.
This court in Investors Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (8th Cir.1977) at page 603 stated that “work product” to be protected must have been obtained “in anticipation of litigation or for trial.” So also the concept furnishes no shield against discovery of the facts that the adverse party’s lawyer has learned, or the person from whom he has learned such facts or the existence or nonexistence of documents, even though the documents themselves may not be subject to discovery. Wright and Miller, Federal Practice and Procedure, Civil § 2023 at 194.
The conduct of AMC provided it with the best of two worlds. In the first instance it prevented Ms. Burns from testifying as to the existence or nonexistence of the documents. In the second place it prohibited the trial court the opportunity of determining, in camera or otherwise, whether or not the documents, if indeed they existed, constituted “work product” under the definition of the rule and the teachings of Diversified Industries, Inc. The final chapter to AMC’s intrigue would be written should this case be reversed and returned to the trial court for yet further arguments and hearings on discovery. Many more months will elapse before the matter will be finally concluded on its merits.
II. ATTORNEY-CLIENT PRIVILEGE
What has been previously said is equally applicable to the attorney-client privilege. While it is argued that the practice of deposing opposing counsel “in-house” or otherwise is a practice to be used sparingly and within narrow limits, nonetheless in this case it does not seem inappropriate given the barriers presented by AMC to true discovery. While “in-house” counsel are entitled to the same privilege as private counsel, nonetheless the structure of a large corporation such as AMC provides a unique opportunity to hide matters otherwise discoverable.
In Diversified Industries, Inc., supra, Judge Heaney, speaking for an en banc *1333court, set forth five tests to determine if an attorney-client privilege is applicable to an employee’s communication: (1) the communication was made for the purpose of securing legal advice; (2) the employee making the communication did so at the direction of his corporate superior; (3) the superior made the request so that the corporation could secure legal advice; (4) the subject matter of the communication is within the scope of the employee’s corporate duties; and (5) the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.
The court stated, “We note, moreover, that the corporation has the burden of showing that the communication in issue meets all of the above requirements.”
AMC did not attempt to meet its burden. It chose to stand on its claim of privilege without more. By its inaction it stultified the process by preventing the trial court from assessing any proffered evidence as to the claimed privilege. The ultimate result has been inordinate delay in the resolution of this matter to the detriment of the parties and to the system of justice itself.
The thrust of the majority opinion implicitly places the blame for this prolonged litigation on this plaintiff. In the context of this case I am unable to agree that this plaintiff is at fault.
The importance of this case is underscored by the filing of amicus briefs for the Motor Vehicle Manufacture Association of the United States, Inc., Defense Research Institute, Inc., American College of Trial Lawyers, and 313 of the largest corporations in the United States (the Who’s Who of the corporate and business world), all of which urge reversal of this case.
To reverse this case would be to sanction the type of conduct which AMC took here— that is, the prevention of the trial court in making an independent and detached in camera inspection of those documents claimed to be “work product” or “privileged.” The courts and not the attorneys for parties should be the final arbitrator of whether such claims are valid or not.
Diversified Industries, Inc. v. Meredith, supra, offers the best hope for judicial resolution of these matters. The defendant has ignored its responsibility under that case.
The majority opinion will provide added incentive to corporate as well as noncorpo-rate counsel to hide from judicial scrutiny otherwise discoverable documents.
III. CONCLUSION
In sum, the court should approve the sanction of directed verdict of liability, extreme as it may be, for the reason that AMC willfully failed to properly present their claim of “work product” and “attorney-client privilege” to the trial court for proper consideration. The mere existence or nonexistence of the requested documents is neither “work product” nor “attorney-client privilege.” While their contents may fall within such definitions, AMC by its conduct prevented an orderly determination of the issue, in camera or otherwise. It willfully refused to meet the bur*1340den imposed by this circuit in Diversified Industries, Inc., supra, and should not now be permitted to complain.
. (6) A party may in his notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.
. Dawkins Deposition, p. 73.
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