(dissenting).
I respectfully dissent. Although I agree with the majority that Leer v. Chicago, Milwaukee, St. Paul & Pacific Ry., 308 N.W.2d 305 (Minn.1981), cert. denied, 455 U.S. 939, 102 S.Ct. 1430, 71 L.Ed.2d 650 (1982), can be construed to compel production of Dr. Anderson’s statement, I question the wisdom of such a construction, and I would hold the statement protected from discovery even if that decision requires either partial overruler of Leer or some clarification.
The factual setting of Leer differs more than considerably from that in the instant case. Leer sued his employer but not his co-employees. Despite the reference in Leer to the argument that the plaintiff sought to impose vicarious liability on the railroad for the action of its employees, it is not evident from the opinion, either from its statement of facts or from the language of the holding, that any part of Leer’s claim was based on the negligence of any of those co-workers whose statements were sought. In other words, Leer’s claim did not necessarily rest on the conduct of these co-workers, these “non-parties”. Moreover, in dealing with the availability of the attorney-client privilege the court appeared to regard Leer’s co-workers as mere witnesses to the accident. In the present case, on the other hand, a plaintiff unrelated to the defendant corporation asserts a cause of action against this defendant based solely on the alleged negligence of Dr. Anderson. Now it may be that the plaintiff’s failure to make Dr. Anderson a party defendant was fortuitous, but the title of the case and the language of the complaint imply that Dr. Anderson’s absence as a party is the result of a tactical decision *922designed to manipulate the Rules of Civil Procedure in a manner calculated to disadvantage the corporate defendant.
In Larson v. Independent School Dist. No. 313, 305 Minn. 358, 362, 233 N.W.2d 744, 747 (1975), we said that “the rules are to be liberally construed so as to serve the interests of justice and so as to discourage reliance on technicalities and form.” Although the majority in Leer relied on that rule of construction to support its determination that Leer’s co-workers who were not named parties were not “parties” within the meaning of Minn.R.Civ.P. 26.02(a)(3), 308 N.W.2d at 307, it seems to me that a liberal construction of the rules to serve the interests of justice and to discourage reliance on technicalities requires Dr. Anderson’s statement to be accorded the same protection as that of a party.
It is my understanding that we entertained review of the present case because it has for some time been obvious that the decision in Leer required some clarification. The accuracy of the observation is borne out by the attempt to apply Leer in the circumstances of this case. In my judgment the purpose of the Rules of Civil Procedure is better served by a limitation on the form of discovery proposed in this case. I would grant the petition and issue a writ of prohibition.