NO. 80-409
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
JULIE JAAP ,
Relator,
THE DISTRICT COURT OF THE
EIGHTH JUDICIAL DISTRICT
OF THE STATE OF MONTANA, IN
AND FOR THE COUNTY OF CASCADE et al.,
Respondent.
ORIGINAL PROCEEDING:
Counsel of Record:
For Relator:
Hoyt and Trieweiler, Whitefish, Montana
Terry Trieweiler argued, Whitefish, Montana
For Respondent:
Smith, Baillie and Walsh, Great Falls, Montana
h argued, Great Falls, Montana
B d u
Submitted: January 19, 1981
Decided: FEB 2 4 1a
9
Filed: R 2 4 1981
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Clerk '
Mr. Justice John C. Sheehy delivered the Opinion of the Court.
Julie Jaap applies to this Court for a writ of super-
visory control directed to the District Court, Eighth
Judicial District, Cascade County, Montana, for the purpose
of reversing a discovery order entered by the District Court
on October 15, 1980. We accept jurisdiction of the application,
and after receipt of briefs and oral argument, we find merit
in the application and order supervisory control.
Julie Jaap has brought suit in the Cascade County District
Court against defendant William Reeves, seeking damages alleged to
have
/arisen out of an automobile accident. She claims personal
injuries to her neck, lower back and lower extremities, and
damages for medical expenses incurred, including examinations
and treatments by eight physicians and physical therapists.
Counsel for Reeves moved the District Court to permit
defense counsel to hold private conferences with all of the
medical persons who have examined Julie Jaap with regard to
her alleged injuries. After considering argument from both
parties on the motion, the District Court entered the following
order:
"NOW, THEREFORE, IT IS HEREBY ORDERED
that the [relator] on February 6, 1980,
upon filing her complaint seeking damages
for personal injuries resulting from an
automobile accident occurring on March 15,
1979, has waived thereby the physician-patient
privilege between the [relator] and any
physician treating the [relator] for injuries
resulting from said accident. That upon a
waiver of the physician-patient privilege,
all physicians treating the [relator] for
the injuries alleged by the [relator] to have
resulted from said accident are thereafter to
be considered as any other witness who
might have knowledge or information which
might be relevant to above captioned matter."
On its face, the District Court order is inoffensive.
However, all parties acknowledge that the intent of the
District Court was to permit private interviews between
defense counsel and Julie Jaap's physicians and therapists.
This is confirmed by the order of the District Court which
stayed the discovery order pending application for super-
visory control to this Court. The District Court order
provided :
"IT IS ORDERED that the implementation of
the court's order . .
. permitting the
defendant to interview the [relator's]
physicians outside the presence of the
[relator's] attorney be stayed . ..pending
[relator's] efforts to petition [for a writ
of supervisory control] . .
." (Material in
brackets supplied.)
Rule 35, M.R.Civ.P., relating to the physical and
mental examination of persons, is different from its federal
counterpart (Rule 35, Fed.R.Civ.P.) in that in Montana, Rule
35 (b)(2), was amended in 1972 to read as follows:
"Waiver of privilege. Either by (1) requesting
and obtainins a report of the examination
ordered as p;ovided herein, or by taking the
deposition of the examiner, or by (2) commencing
an action or asserting a defense which places
in issue the mental or physical condition of
a party to the action, the party examined or
the party to the action waives any privilege he
may have in that action or any other action involving
the same controversy, regarding the testimony of
every person who has treated, prescribed, consulted,
or examined or may thereafter treat, consult,
prescribe or examine, such party in respect to the
same mental or physical condition; but such waiver
shall not apply to any treatment, consultation,
prescription or examination for any mental or physical
condition not related to the pending action. Upon
motion seasonally made, and upon notice and for good
cause shown, the court in which the action is pending,
may make an order prohibiting the introduction in
evidence of any such portion of the medical
record of any person as may not be relevant to
the issues in the pending action."
There is no question but that under Rule 35(b) (21,
M.R.Civ.P., as the same is promulgated in Montana, Julie
Jaap, by commencing an action for damages for her personal
injuries which placed in issue the mental and physical
condition arising from the accident, waived any physician-
patient privilege as to her mental or physical condition in
controversy. Accepting as a premise that the physician-
patient privilege has been waived, may the District Court,
by way of discovery, order that defense counsel may engage
in informal, private interviews with the physicians treating
Julie Jaap for her alleged injuries?
Put another way, granting that plaintiff has waived any
physician-patient privilege relating to her mental and
physical condition in controversy, what limits, if any,
circumscribe the power of the District Court in authorizing
and enforcing discovery under the Montana Rules of Civil
Procedure?
Although we agree with that portion of the District
Court order which stated that once the physician-patient
privilege has been waived, the physician is to be considered
as any other witness, we conclude that the District Court
does not have power, under the rules of discovery, to order
private interviews between counsel for one party and possible
adversary witnesses, expert or not, on the other. We derive
this conclusion from an examination of'the Rules of Civil
Procedure relating to discovery.
The methods by which discovery may be obtained, under
the Montana Rules of Civil Procedure, are set out in Rule
.
26 (a) That subsection provides:
"Discovery methods. Parties may obtain discovery
by one or more of the following methods: de-
psitions upon oral examination or written
questions; written interrogatories; production
of documents or things or permission
to enter upon land or other property,
for inspection and other purposes;
physical and mental examinations; and
requests for admission. Unless the
court orders otherwise under subdivision
(c) of this rule, the frequency of use
of these methods is not limited."
Obviously a private interview of an adversary witness
is not one of the "methods" of discovery for which the
Rules of Civil Procedure provide.
The remainder of the Montana Rules of Civil Procedure
relating to discovery (Rules 26-37, inclusive) are obviously
designed to enhance and enforce the "methods" of discovery
outlined in Rule 26(a). Especially important in the Rules
are the protective provisions which in effect provide for a
record upon which a District Court may issue protective
orders, provide for mental and physical examinations of
plaintiffs claiming injuries, and establish sanctions, if
discovery is refused or hampered, or if a discoverer goes
too far in the proposed discovery. See Rule 26(c), Rule
30(d), Rule 30(g), Rule 33(b), and Rule 37, M.R.Civ.P.
The special utility of Rule 37, where a litigant is
following one of the methods of discovery outlined in Rule
26(a), is especially to be noted. If, for example, an examining
physician refuses to answer a question on the ground of
privilege raised by a party, application may be made to the
court for an order compelling answers. Under Rule 37(a)(4),
if the motion is granted, the court has the power to require
the deponent or the attorney responsible to pay the moving
party the reasonable expenses incurred in obtaining the order,
including attorney fees. On the other hand, if the motion is
denied, the court has the same power to require the moving
party or the attorney advising the motion or both of them to
pay the other party the reasonable expenses incurred and
attorney fees. Professor Moore points out:
"The effect of this language in most
cases should be that the examining
party and his attorney will respect
objections of privilege which have a
substantial justification and that the
deponent and his attorney will not inter-
pose objections of privilege which do not
have a substantial justification." 4 Moore's
Federal Practice at 26-250, 5 26.60[5],
Privileged Matter.
It is obvious, that if a method of discovery such as a
private interview is ordered by the court, the sanctions and
protections which are available under the Montana Rules of
Civil Procedure for ordinary methods of discovery become
unavailable for private interviews.
We conclude therefore, that a District Court, in
allowing and enforcing discovery in litigation before it,
must relate the discovery to one of the methods provided in
Rule 26(a), M.R.Civ.P. Any attempt to enforce a method of
discovery not provided by the Montana Rules of Civil Procedure
is outside the power of the District Court. We hold that the
Court is without power to order a private interview. To do
so would defeat open disclosure, a prime objective of the
Rules of Discovery.
This is not to say that we disapprove of the practice
of agreements between counsel for interviews or other dis-
covery to save time and expense. In fact, we encourage such
agreements. In this case, plaintiff's counsel offered to
allow defense interviews of the plaintiff's physicians, on
condition that the plaintiff be present when the interviews
occurred. Counsel for the defendant disdained this offer,
relying on the District Court's order for private interviews.
Rule 35 (b)(3),, M. R. Civ.P. , contemplates examinations made
by the agreement of the parties but obviously, when the Rule
provides for an "agreement", it means a procedure to which
both parties consent. If the parties cannot agree on a
method of discovery, then resort to the District Court for
orders compelling discovery must relate to the methods of
discovery provided in Rule 26(a) for which protections and
sanctions are set out.
We choose not to follow the rule established in Alaska
which has a similar provision to our Rule 35. Arctic Motor
Freight, Inc. v. Stover (Alaska 1977), 571 P.2d 1006; Trans-
World Investments v. Drobny (Alaska 1976), 554 P. 2d 1148.
Moreover, anything contained in Callahan v. Burton (19711,
157 Mont. 513, 487 P.2d 515, in conflict with what is said
herein is specifically overruled.
The application for writ of supervisory control is
granted. The order of the District Court, to the extent
that it permits private interviews of relator's physicians
is vacated. A copy of this opinion shall serve the office
of a formal writ of supervisory control and service by the
Clerk of this Court by mail upon court and counsel shall
constitute sufficient service thereof.
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Justice
We Concur:
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JUStices