# FILED December 1, 1995 Cecil Crowson, Jr . Appellate Court Clerk JOHN M. C ANNON, GR AYSON ) SMITH CANNON, AND CANNON, ) CANNON & COOPER, ) ) Plaintiffs/App ellees, ) ) Appeal No. VS. ) 01-A-01-9505- CV-00195 ) SUSAN GA RNER, ABB Y ) Davidson Circuit RUBENFELD, Individual ly and d/b/a ) No. 94C-3306 RUBENFELD & ASSOCIATES, ) ) Defendants/Ap pellants. ) ) DAVID COOPER, ) ) Plaintiff/Appellee, ) ) VS. ) ) SUSAN GA RNER, ABB Y ) RUBENFELD, Individual ly and d/b/a ) RUBENFELD & ASSOCIATES, ) ) Defendants/Ap pellants. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE APPEALE D FRO M THE C IRCU IT COU RT OF D AVIDSO N COU NTY AT NASHVILLE, TENN ESSEE THE HONORABLE WALTER C. KURTZ, JUDGE
CHARLES PATRICK FLYNN GERALD D. N EENAN 200 Fourth Avenue North Nashvil le, Tennessee 37219 Attorney for Plaintiff /Appellee John M. Cannon, et al. JOHN P. BR ANHAM 150 Fourth Avenue North Nashvil le, Tennessee 37219 Attorney for Plaintiff/Appellee D avid Cooper W INSTON S. EVANS DENNIS J. MEAKER 150 Fourth Avenue North Nashvil le, Tennessee 37219- 2424 Attorney for Defendants/Appellants

AFFIRMED AND REMAN DED

BEN H. CAN TRELL, JUDGE CONCUR: TODD, P.J., M .S. KOCH, J. 

## O P I N I O N- 2 - The appellants are two law yers w ho are defendants below in a malici ous prosecution a n d a b u s e o f p r o c e s s c a s e . We granted their motion for an extraordinary appeal, to revie w the tri al court's holding that the work pr oduct doctrinedid not prevent the discovery of certain informatio n gene rated in the pr ior case. We affirm the trial court's order.

I.

The appellants re presen ted a plaintiff in a sexual har assment action against the appellees, memb ers of another law firm. When the plaintiff in the original action non-suited her

sexual har

assment claim, t he original defen dants su ed her lawyers for malicious prosecution and abuse of process . The complaint al leges that the appellants brought the original action knowing -- or wit h access to i nformation that would have shown --that the clai ms against th e appellees were false.

The appellants answered the c omplaint and alleged t hat they made a full and complete investigation of the claims ag ainst the a ppell ees. However, they resisted all discov

ery of the facts surrounding the ir invest igation by asserting the attorney-c lientprivil ege and the work-product doctrine. In a motion to compel, the trial judge ov erruled the obj ection based on w ork-product

but reserved judgment on th e attorney-c lientpriv ileg e. We grant ed the a ppell ants' Rule 1 0, Te nn. R. Ap p. Proc. motion.

II. Work Product- 3 - The work product rule, sometimes called a privile ge , Oberkircher v. Chicago Transit Authority , 41 Ill. App. 2d 68, 190 N.E.2d 170(1963), or a qualified immunity from discover

y, International T

el. &Tel. Corp. v. United T el. Co. , 60 F.R.D. 177 (M.D. Fla. 1973), is general ly trac ed to the decisi on of the United Stat es Suprem e Court in Hickman v. Taylor , 329 U.S. 495, 67

S .Ct. 385, 91 L.Ed. 451 (1947). The federal rule is now codified in rule 26(b)(3) of the Federal Rul es of Civi l Procedure.

The Tennessee rule is fou nd in Rule 26.02(3) , Tenn. R. Civ . Proc., the relevant portion of which provides:

TRIAL PREPARATION: MATERIALS. Subject tothe provisi ons of su bdiv isi on ( 4) o f t h is rule, a party may obtain discovery

of documents an d tangible things otherwise discoverable under subdiv ision (1) of this r ule and prepared in anticipation of litigati on or for trial by or for another party

or byor for that other

party's representati ve ( including his atto rney, consultant, surety, indemnitor, i nsurer, or agent) onlyu pon a showin g that the par ty seekingdiscover

y has subst antia l need of the mat erials in the preparation of his case and that he is un able witho ut undue hardship to obta in the substantial e quival ent of the materials by other means

. In ord eri ng d isc ove ry

of such m aterials w hen the requi red showing has been m ade, the court shall protect against disclosure of the mental imp ressions, conclusions, opinions, or leg al t heor iesof an atto rney or o ther rep res entative of a party conc erning the l itigation.

The is s ue in this case does not come within the literal term s of rule 26.03(3), because the rule refers to inf ormatio n gene rated and impres sions gain ed in preparation for litigati ng the case i n which th e rule is i nvoked. In t he present case, the rule is i nvoked t o shi eld discovery of informati on generated i n a prior ca se. Nevertheless, the courts have generally held that Rule 26.03(3)'s protection of work product ext ends to subsequent ca ses. See F.T.C. v. Grolier, Inc. , 462 U.S. 19, 103 S.Ct. 2209, 76 L.Ed.2d 387 (1983). In Downing v. Bowater, In c. , 846 S.W.2d 265 (Tenn. App. 1992), the Ea stern Section of this court hel d that a report prepared for the defendant (Bowater

) in connecti on with th e defense of an action in 1979 was still immune from discoveryin an action in 1990, based o n the same conduct giving rise to the negli gence clai m.- 4 - The parties dis agree ove r whether th e Bowater

decision is restr icted to subsequent

cases whe re the issues are closel y relate d to the is sues in the case where the information was generated. The appellants argue that th e pro tection of work product ex

tends to all s ubsequent cases , whether t he issues arerelated or not. In th at c onnection, w e note that Bowater cites w ith approva l a case that s ays "the mischiefengendered by all owin g discovery of wo rk product r ecognize d in Hickman would apply w ith equal v igor to di scovery in future, unrel ated litig ati on." See In Re Murphy , 560 F.2d 326 at 335 ( 8th Cir. 1977) . The lower court avoi ded the applicati on of the Bowater

rule to this

case by c haracteriz ing this p art of the opinion as di cta. We agree that the reference in Bowater to future, unrelated litigation is dicta because t he issues in bo th ca ses we re clo sely r elated; in fact, t hey were the same, being based
on the same charge of negligence. W hether the dicta should be totall y ignored is, however, another quest ion. See Taylor v. Taylo r , 16 2 Tenn. 482, 40 S.W.2d 393 (1931).

We think that appl ying the Bowater rule toall future, unrelated li tigation would require that work product be g iven absolute protec tion against

discover y. With
one or two ex

ceptions, see Duplan Corp. v. Moulinage et Retorderi

e de Chavanoz

, 509 F.2d 730 (4th C ir. 1974), t he courts have rejected this arg ument. See Holmgr en
v. State Farm

Mut. Ins. C

o. , 97 6 F.2d 573 (9t h Cir. 1992) . Even the Bowater court recogniz ed that t h e 197 9 rep ort m ight b e dis cover ed -- a s rele vant t o the puni tive d amage s issue -- if it showed that Bowater recklessl y disreg arded its cont ents, and the report could not be obtained by oth er me ans. See Ru le 26 .02( 4)(B) , Te nn. R . Civ. Proc.

In bad f aith case s agai nst in sura nce c omp anie s som e cou rts ha ve allowed the discovery of opinio n work pr oduct where"mental impress ions are at i ssue in the case and the need for the material i s compelling ." In Charlotte M otor Speedway
v. International Insurance Co. , 125 F.R.D. 127 (M.D. N.C. 1989), the cour t held that,- 5 -

"manycourts faced w ith the issueof t he pr odu ctio n of opin ion wo rk pro duct have recogniz ed an exceptio n to Rule 26(b) (3) protection for work product which concerns acti vi ties of c ounsel that are directly at issue." 125 F.R.D. at 130 . In Brown v. Superior Court , 670 P.2d 725 (Ariz. 1983), the court said th at opinion workproduct of an attorney could be discov ered in a bad faith action against an insurer beca use its "substantial equivalent" could not be obtained by other means.

As we read the record in this case the questions addresse d to th e appellantsproc eed ed al ong two lines. The fir st addressed the issue of "w hat did you do?", and the second concerned "what did you l earn?" The work product rule does not cover the fir st line ofquestions b ecause "what did you do" does not seek to discover "documents and tang ible thing s" prepared for the attorney s in antici pation of li tigation. "What did you learn", is covered by Rule 26.02(3) but we thi nk the bette r result recogniz es an exception w here the activ ities of counsel are directl y at iss ue. The appellees in this case have a substant i al need for the inf ormation they are seeking, and there is n o way for them to obtain the "s ubstantial eq uivalent" of the information by

other means. See Brown v. Superior Court , 670 P.2d 725 (Ariz. 1983).

III.

The appellants also contest the trial court's a ward of sanctions for requiri ng the appellees t o seek a motion to compel. The tria l court awarded $150 to each of the lawyers for the appell ees against one of the appellant's lawyers (and not against the ap pellants themsel ves.)- 6 - The u nusual circ umstances under w hich the parti es were pr oceeding supplythe appellants' best argument. The trial court overruled the appe llants' motion fora protective order at a F riday moti on docketand the appellants' deposition s were sch eduled to begin on the following Monday. However, because the clerk's off ice failed to delive r the appellant s' brief to the trial judge in time for the trial judge to fully consider it, the tr ial judge indicated to t he appellants' lawyer that he might reconsider the motion up on read ing t he brief. Thus, a feeli ng of uncertaint y persisted at the depositions.
Taking all that int o account, however, we think the tr ial judge' s action
was proper. Some of the questions th e appellantsrefused to answer fell in the "w hat did you do" categ ory and, i n our opinion, were not covered by the work product rul e; and while an air of uncertainty covered the proceedings, the part ies were operating in the face ofa ruling by the trial judge with on ly a hint th at he mi ght reverse the rulin g. Under such circumstances, we think the appellan ts ass umed the risk of failingto answer q uestions in r

eliance on a work product de fense.

The judgment of the court below is affirmed and the cause is remanded to the Circui t Court of Dav idson County for any further

proceedings

necessary . Tax the costs on appeal to the appellants.

_______________ ______ _______ _ BEN H. CAN TRELL, JUDGECONCUR:

_______________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

_______________________________ WILLIAM C. KOCH, JR., J UDGE