concurring:
Although I agree that the judgment below should be affirmed, I cannot agree with the analysis of the discovery issue discussed under the heading of “Issue 2” in the majority opinion.
I agree that //there had been evidence before the hearing judge that the documents sought by the plaintiffs were “prepared in anticipation of litigation or for trial”, it could not be said that the hearing judge abused his discretion in denying the plaintiffs’ motion to compel discovery. The *306difficulty I have with agreeing that there was no error in denying the motion is that at the hearing there was no evidence presented by either side concerning the purpose of preparing the documents sought to be discovered.1 Absent such evidence, I am at a loss to understand how the judge could conclude, in vacuo, that “... the purpose of making the report, the purpose of giving this data, the purpose of collecting the data, is to supply it to the liability carrier, whose only possible interest in obtaining such information is in anticipation of litigation.”
Where, as in this case, the plaintiffs’ request for discovery of documents is refused by the defendant on the ground that the documents were prepared in anticipation of litigation and are therefore immune from discovery, and a hearing is thereafter held on a motion to compel discovery, the burden is on the party refusing discovery to establish the grounds of the claimed immunity, i.e., that the documents sought were in fact prepared in anticipation of litigation. In my opinion, the defendant failed to meet that burden. At the hearing the plaintiffs’ counsel asserted that the reports he sought were “routine reports” “done in the regular course of Mass Transit Administration’s business in the year 1974 [the year of the accident] ....” The defendant’s counsel, on the other hand, asserted that the documents sought “are all documents in anticipation of litigation”. Statements of counsel, of course, are not evidence.
It is apparent from the record that the principal document sought by the plaintiffs was an accident report made by the M.T.A.’s Transportation Supervisor, Mr. Lee Harvin. As later revealed by his testimony at trial, Mr. Harvin arrived at the scene of the accident within 15 minutes after it happened, made a diagram of the scene, got a list of the witnesses, and took a statement from the bus driver. All this information was embodied in a report to his employer, M.T.A. On the report form was a space to indicate “motion of company vehicle”. Mr. Harvin had written opposite this printed notation the word “moving”. The record indicates that the accident report, *307or a copy of it, was given to plaintiffs’ counsel at trial just prior to Mr. Harvin’s taking the stand to testify for the defendant. On cross-examination by plaintiffs’ counsel, Mr. Harvin was fully questioned concerning the entire report, including the “moving” notation.
On appeal, the plaintiffs contend they were prejudiced by not having the report before trial. — “that if Harvin’s report had been ordered produced on Discovery at Deposition, the driver’s lie could have been nailed before trial and the case won by the Plaintiffs____” I think this argument is specious. The alleged “lie” was the driver’s testimony at trial that the bus had been stopped for 4-5 seconds in the intersection before the defendant’s motorcycle ran into it. The plaintiff argues that this is inconsistent with Harvin’s notation on the accident report that the bus was “moving”. Harvin testified, however, that the “moving” notation was not meant to indicate that the bus was moving “at the time of impact”. He further testified on direct examination, quoting from the accident report, without objection, that the driver had told him at the scene that, “He came to a complete stop in the intersection. The motorcycle ran into the left front of the Coach.” This is consistent with the driver’s answers to interrogatories propounded by the plaintiffs, some three years before the trial, in which he said: “[Defendant started to make a left turn, the plaintiff was coming northbound at a high rate of speed; the bus stopped and the [plaintiff] continued in a straight path without slowing down or trying to go around the bus and ran into the left side of the bus”. The plaintiffs could therefore hardly claim they were surprised by the bus driver’s testimony at trial. Regardless of the inferences that may be drawn from the accident report and the driver’s testimony, it seems clear in the circumstances of this case that the plaintiffs have failed to show they were prejudiced by any error that may have been made by the hearing judge in not allowing pre-trial discovery of the accident report. I would therefore hold that it is not necessary to determine the correctness of the hearing judge’s ruling on the motion to compel discovery, for even assuming him to be wrong, the error would not warrant reversal of the final judgment.
*308As the majority opinion now stands, however, there being no evidence presented on the issue at the pre-trial hearing, I can only conclude that the opinion is authority for the proposition that any relevant accident report made by an employee of a common carrier must automatically be regarded as “prepared in anticipation of litigation or for trial” and therefore not discoverable, absent a showing of “substantial need” or “undue hardship” pursuant to Md. Rule 400 d (ii) (iii). I cannot agree with such a proposition. I think it flies in the face of the basic philosophy and purpose of the discovery rules. “Modern discovery statutes or rules are intended to facilitate discovery, not to stimulate the ingenuity of lawyers and judges to make the pursuit of discovery an obstacle race” (Barnes v. Lednum, 197 Md. 398, 406-407 (1951)) and “are to be liberally construed”. (Balto. Transit v. Mezzanotti, 227 Md. 8, 13 (1961)). “No longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiring into the facts underlying her opponent’s case”. (Hickman v. Taylor, 329 U. S. 495, 507, quoted with approval in Hallman v. Gross, 190 Md. 563, 574 (1948)).
That accident reports are not automatically regarded as “prepared in anticipation of litigation or for trial” is shown by the many cases and text writers holding to the contrary. See 8 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2024 at 198-199 (1970) and cases cited in footnote 25 thereof and the 1978 Pocket Part thereto. The noted authors discuss at length Federal Rule 26 (b) (3), adopted in 1970, that was followed by Maryland in adopting, in 1973, Md. Rule 400 d in almost identical terms.
. Moreover, the offer of defendants’ counsel to allow the judge to inspect the documents in camera was refused by the judge.