FRANK B. ELLIS, District
Judge.
On July 31, 1960, the Plaintiff’s son was injured on an escalator descending from the main lobby to the baggage area of the New Orleans International Airport (Moisant Field). On February 14, 1961, a Mr. Robert Lind of the Liberty Mutual Insurance Company, insurer of Westinghouse Electric Company, manufacturer, installer and maintainer of the escalator, ordered Fromherz Engineers to make an inspection report on the physical installation and the present mechanical and electrical operating condition of the escalator.
On February 16, 1961, Mr. George L. McMurtray of Fromherz met Mr. Lind at Moisant Field. Mr. Lind was accompanied by two representatives of Westinghouse, Messrs. Harley Boudreaux and W. J. Bates. A thorough inspection was made that day and on February 22, 1961, Messrs. McMurtray and Bates returned to remeasure the machine clearances and reeheek safety devices on the escalator.
Suit was filed on July 26, 1961. Plaintiff then propounded interrogatories to the defendant, Number 18 of which sought information about reports and inspections made on the escalator. Defendant’s answer was to the effect that Fromherz Engineers were engaged and began their work on August 10, 1960 and completed the inspection on October 24, 1960.
Plaintiff then filed a motion for the production of the report prepared “during the period of August 10, 1960 to October 24, 1960.” After argument on the motion the defendant presented the court with a report for
in camera
inspection from the Fromherz Engineers dated May 16, 1961. This report states that it was prepared in February of 1961. Perchance there are, not one, but two reports on the escalator.
Defendant opposes the production of the report on the grounds that it is the report of an expert and not subject to discovery, that it is violative of the attorney-client privilege; that it is unconscionable to allow the adverse party to profit at defendant’s expense; that the conclusions in the report are not discoverable and that good cause has not been shown for the production of the x-eport.
We shall first deal with the defendants contention that the reports of experts are not subject to discovery and that the conclusions are not discoverable.
In the area of expert witnesses the numerical weight of district court cases supports the proposition that expex’ts are immune from discovery
although thex-e
is a substantial number of district court cases to the contrary which hold that an expert’s deposition may be taken and that a copy of his report is subject to discovery.
The only Court of Appeals ease says that an expert is subject to the discovery process.
The classic illustration is that of the Cold Metal Process Company v. Aluminum Company of America cases. One was filed in Massachusetts
and the other in Ohio
. The expert in the Massachusetts case was Dr. Martin Buerger of M. 1. T., a colleague of the expert in the Ohio case, Dr. George Sachs of Case Institute of Technology, Cleveland, Ohio. (It may be well to mention that Dr. Buerger was called away into government service and Dr. Sachs continued his investigation.)
The opposing parties attempted to take the deposition of both experts. Dr. Buerger’s plea of privilege was upheld in Massachusetts. Dr. Sachs’ plea of privilege was rejected in Ohio. His further refusal to answer resulted in his being held in contempt. The Sixth Circuit affirmed.
Defendant directs the court’s attention to a number of cases which seem to sustain the proposition that experts are not subject to discovery, the first of which is Lewis v. United Air Lines Transport Corporation, supra. • The Lewis case is by far the strongest ease in the defendant’s arsenal, however, there are cases arising out of the other districts which, in this court’s opinion, reasonably modifies the Lewis rule to further the ends of justice.
In the Lewis case the court held that an expert need not divulge opinion from the results of tests conducted on the cylinder of an airplane engine. Defendant cited four other cases in support of this proposition
, however they are not all in point.
Mutual knowledge of all the relevant
facts
gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever
facts
he has in his possession.
The court is of the opinion that Walsh v. Reynolds Metals Company, supra, provides a rule that will do justice as between these parties. That controversy arose as the result of an explosion of a propane gas stove. A week after the explosion the defendant’s attorney ordered the equipment examined by an expert. The stove was dismantled and an examination made forthwith by the expert and several plumbers. Plaintiff sought to photocopy the report under Rule 34. The court ordered the factual content of the report discovered and excepted the conclusions.
Defendants next contention is that it would be unconscionable to allow the plaintiff to profit at the defendant’s expense. The Walsh case is also determinative of this aspect, with reservations. The decision allowed the factual content discovered and ordered that the plaintiff was to have the conclusions and opinions only if he paid for them. This court agrees that the factual content should be subject to discovery. However, we disagree with our learned brother in his holding that the conclusions and opinions should be discovered upon payment therefor. The court is of the opinion that opinions and conclusions of experts are, not a proper subject of discovery, at least under these circumstances.
Defendant also alleges that the report is not discoverable because it is violative of the attorney-client privilege and directs the courts attention to the Lewis case, supra, and Schuyler v. United Airlines, Inc., M.D.Pa.1950, 94 F.Supp. 472. As will be seen below the Lewis case is not controlling as this is not a situation for the exertion of the attorney-client privilege. Schuyler is a “best evidence” controversy and not at all in point.
The court does not believe this report is privileged as asserted by de
fendant, notwithstanding the fact that the report is presently in its counsel’s possession. The mere fact that the attorney has possession of the documents does not render it privileged.
In Falsone v. United States, 5 Cir., 205 F.2d 734
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FRANK B. ELLIS, District
Judge.
On July 31, 1960, the Plaintiff’s son was injured on an escalator descending from the main lobby to the baggage area of the New Orleans International Airport (Moisant Field). On February 14, 1961, a Mr. Robert Lind of the Liberty Mutual Insurance Company, insurer of Westinghouse Electric Company, manufacturer, installer and maintainer of the escalator, ordered Fromherz Engineers to make an inspection report on the physical installation and the present mechanical and electrical operating condition of the escalator.
On February 16, 1961, Mr. George L. McMurtray of Fromherz met Mr. Lind at Moisant Field. Mr. Lind was accompanied by two representatives of Westinghouse, Messrs. Harley Boudreaux and W. J. Bates. A thorough inspection was made that day and on February 22, 1961, Messrs. McMurtray and Bates returned to remeasure the machine clearances and reeheek safety devices on the escalator.
Suit was filed on July 26, 1961. Plaintiff then propounded interrogatories to the defendant, Number 18 of which sought information about reports and inspections made on the escalator. Defendant’s answer was to the effect that Fromherz Engineers were engaged and began their work on August 10, 1960 and completed the inspection on October 24, 1960.
Plaintiff then filed a motion for the production of the report prepared “during the period of August 10, 1960 to October 24, 1960.” After argument on the motion the defendant presented the court with a report for
in camera
inspection from the Fromherz Engineers dated May 16, 1961. This report states that it was prepared in February of 1961. Perchance there are, not one, but two reports on the escalator.
Defendant opposes the production of the report on the grounds that it is the report of an expert and not subject to discovery, that it is violative of the attorney-client privilege; that it is unconscionable to allow the adverse party to profit at defendant’s expense; that the conclusions in the report are not discoverable and that good cause has not been shown for the production of the x-eport.
We shall first deal with the defendants contention that the reports of experts are not subject to discovery and that the conclusions are not discoverable.
In the area of expert witnesses the numerical weight of district court cases supports the proposition that expex’ts are immune from discovery
although thex-e
is a substantial number of district court cases to the contrary which hold that an expert’s deposition may be taken and that a copy of his report is subject to discovery.
The only Court of Appeals ease says that an expert is subject to the discovery process.
The classic illustration is that of the Cold Metal Process Company v. Aluminum Company of America cases. One was filed in Massachusetts
and the other in Ohio
. The expert in the Massachusetts case was Dr. Martin Buerger of M. 1. T., a colleague of the expert in the Ohio case, Dr. George Sachs of Case Institute of Technology, Cleveland, Ohio. (It may be well to mention that Dr. Buerger was called away into government service and Dr. Sachs continued his investigation.)
The opposing parties attempted to take the deposition of both experts. Dr. Buerger’s plea of privilege was upheld in Massachusetts. Dr. Sachs’ plea of privilege was rejected in Ohio. His further refusal to answer resulted in his being held in contempt. The Sixth Circuit affirmed.
Defendant directs the court’s attention to a number of cases which seem to sustain the proposition that experts are not subject to discovery, the first of which is Lewis v. United Air Lines Transport Corporation, supra. • The Lewis case is by far the strongest ease in the defendant’s arsenal, however, there are cases arising out of the other districts which, in this court’s opinion, reasonably modifies the Lewis rule to further the ends of justice.
In the Lewis case the court held that an expert need not divulge opinion from the results of tests conducted on the cylinder of an airplane engine. Defendant cited four other cases in support of this proposition
, however they are not all in point.
Mutual knowledge of all the relevant
facts
gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever
facts
he has in his possession.
The court is of the opinion that Walsh v. Reynolds Metals Company, supra, provides a rule that will do justice as between these parties. That controversy arose as the result of an explosion of a propane gas stove. A week after the explosion the defendant’s attorney ordered the equipment examined by an expert. The stove was dismantled and an examination made forthwith by the expert and several plumbers. Plaintiff sought to photocopy the report under Rule 34. The court ordered the factual content of the report discovered and excepted the conclusions.
Defendants next contention is that it would be unconscionable to allow the plaintiff to profit at the defendant’s expense. The Walsh case is also determinative of this aspect, with reservations. The decision allowed the factual content discovered and ordered that the plaintiff was to have the conclusions and opinions only if he paid for them. This court agrees that the factual content should be subject to discovery. However, we disagree with our learned brother in his holding that the conclusions and opinions should be discovered upon payment therefor. The court is of the opinion that opinions and conclusions of experts are, not a proper subject of discovery, at least under these circumstances.
Defendant also alleges that the report is not discoverable because it is violative of the attorney-client privilege and directs the courts attention to the Lewis case, supra, and Schuyler v. United Airlines, Inc., M.D.Pa.1950, 94 F.Supp. 472. As will be seen below the Lewis case is not controlling as this is not a situation for the exertion of the attorney-client privilege. Schuyler is a “best evidence” controversy and not at all in point.
The court does not believe this report is privileged as asserted by de
fendant, notwithstanding the fact that the report is presently in its counsel’s possession. The mere fact that the attorney has possession of the documents does not render it privileged.
In Falsone v. United States, 5 Cir., 205 F.2d 734, Circuit Judge Rives stated that if “the documents are not privileged while in the hands of a party, he does not make them privileged by merely handing them to his counsel.”
Therefore we must determine whether or not this communication was privileged as between the defendant and Fromherz Engineers.
In United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727, Chief Justice Vinson tells us that the “term ‘not privileged’, as used in Rule 34, refers to ‘privileges’ as that term is understood in the law of evidence.”
In 8 Wigmore, Evidence, § 2285, (3rd ed. 1940) one finds that there are:
“ * * * four fundamental conditions necessary to the establishment of a privilege against disclosure of communications:
“(1) The communication(s) must originate in a
confidence
that they will not be disclosed.
“(2)
This element of confidentiality must be essential
to the full and satisfactory maintenance of the relation between the parties.
“(3) The
relation
must be one which in the opinion of the community ought to be sedulously
fostered.
“(4) The
injury
that would inure to the relation by the disclosure of the communications must be
greater than the benefit
thereby gained for the correct disposal of the litigation.
“Only if these four conditions are present should the privilege be recognized.”
The court is of the opinion that the four fundamental conditions are not present in the relationship of the defendant insurance company with the Fromherz Engineers, and consequently is definitely not “privileged” as understood in the law of evidence.
Defendant also alleges that there has not been a showing of good cause for the production of the report. No abstract rule of thumb has been devised for ready use in determining in every case whether good cause has been shown,
and the district court is vested with a wide, but reasonable discretion.
The court is of the opinion that the document is discoverable and that good cause has been shown. A point not brought out by plaintiff is that the escalator in question is in use twenty-four hours per day by thousands of persons.
The report submitted was prepared six and a half months after the injury. During this time maintenance and routine inspection work had been done on the escalator weekly, as evidenced by defendant’s answers to plaintiff’s interrogatories. The escalator was subjected to
about twenty-six maintenance and routine inspections between the date of the accident and the date of the report submitted to this court. We think the plaintiff should be entitled to the report.
IT IS ORDERED that the written report of Fromherz Engineers submitted to this court for m
camera
inspection be returned to the defendant and to be subsequently delivered to the plaintiff.
IT IS FURTHER ORDERED that the conclusions reached by the Fromherz Engineers on page nine (9) of the report may be removed by defendant and the balance of the report submitted to the plaintiff for inspection or copying.