FILED

December 1,

1995

Cecil Crowson, Jr.

Appellate Court Clerk

JOHN M. CANNON, GRAYSON )

SMITH CANNON, AND CANNON, )

CANNON & COOPER, )

)

Plaintiffs/Appellees, )

) Appeal No.

VS. ) 01-A-01-9505-CV-00195

)

SUSAN GARNER, ABBY ) Davidson Circuit

RUBENFELD, Individually and d/b/a ) No. 94C-3306

RUBENFELD & ASSOCIATES, )

)

Defendants/Appellants. )

)

DAVID COOPER, )

)

Plaintiff/Appellee, )

)

VS. )

)

SUSAN GARNER, ABBY )

RUBENFELD, Individually and d/b/a )

RUBENFELD & ASSOCIATES, )

)

Defendants/Appellants. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE WALTER C. KURTZ, JUDGE

CHARLES PATRICK FLYNN

GERALD D. NEENAN

200 Fourth Avenue North

Nashville, Tennessee 37219

Attorney for Plaintiff/Appellee John M. Cannon, et al.

JOHN P. BRANHAM

150 Fourth Avenue North

Nashville, Tennessee 37219

Attorney for Plaintiff/Appellee David Cooper

WINSTON S. EVANS

DENNIS J. MEAKER

150 Fourth Avenue North

Nashville, Tennessee 37219-2424

Attorney for Defendants/Appellants

AFFIRMED AND REMANDED

BEN H. CANTRELL, JUDGE

CONCUR:

TODD, P.J., M.S.

KOCH, J.

O P I N I O N
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The appellants are two lawyers who are defendants below in a malicious

prosecution and abuse of process case. We granted their motion for an extraordinary

appeal, to review the trial court's holding that the work product doctrine did not prevent

the discovery of certain information generated in the prior case. We affirm the trial

court's order.

I.

The appellants represented a plaintiff in a sexual harassment action

against the appellees, members of another law firm. When the plaintiff in the original

action non-suited her sexual harassment claim, the original defendants sued her

lawyers for malicious prosecution and abuse of process. The complaint alleges that

the appellants brought the original action knowing -- or with access to information that

would have shown -- that the claims against the appellees were false.

The appellants answered the complaint and alleged that they made a

full and complete investigation of the claims against the appellees. However, they

resisted all discovery of the facts surrounding their investigation by asserting the

attorney-client privilege and the work-product doctrine. In a motion to compel, the trial

judge overruled the objection based on work-product but reserved judgment on the

attorney-client privilege. We granted the appellants' Rule 10, Tenn. R. App. Proc.

motion.

II.

Work Product
- 3 -

The work product rule, sometimes called a privilege, Oberkircher v.

Chicago Transit Authority, 41 Ill. App. 2d 68, 190 N.E.2d 170 (1963), or a qualified

immunity from discovery, International Tel. & Tel. Corp. v. United Tel. Co., 60 F.R.D.

177 (M.D. Fla. 1973), is generally traced to the decision of the United States Supreme

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 Rules of Civil Procedure.

The Tennessee rule is found in Rule 26.02(3), Tenn. R. Civ. Proc., the

relevant portion of which provides:

TRIAL PREPARATION: MATERIALS. Subject to the

provisions of subdivision (4) of this rule, a party may obtain

discovery of documents and tangible things otherwise

discoverable under subdivision (1) of this rule and prepared

in anticipation of litigation or for trial by or for another party or

by or for that other party's representative (including his

attorney, consultant, surety, indemnitor, insurer, or agent)

only upon a showing that the party seeking discovery has

substantial need of the materials in the preparation of his

case and that he is unable without undue hardship to obtain

the substantial equivalent of the materials by other means.

In ordering discovery of such materials when the required

showing has been made, the court shall protect against

disclosure of the mental impressions, conclusions, opinions,

or legal theories of an attorney or other representative of a

party concerning the litigation.

The issue in this case does not come within the literal terms of rule

26.03(3), because the rule refers to information generated and impressions gained

in preparation for litigating the case in which the rule is invoked. In the present case,

the rule is invoked to shield discovery of information generated in a prior case.

Nevertheless, the courts have generally held that Rule 26.03(3)'s protection of work

product extends to subsequent cases. 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, Inc., 846 S.W.2d 265

(Tenn. App. 1992), the Eastern Section of this court held that a report prepared for the

defendant (Bowater) in connection with the defense of an action in 1979 was still

immune from discovery in an action in 1990, based on the same conduct giving rise

to the negligence claim. 
- 4 -

The parties disagree over whether the Bowater decision is restricted to

subsequent cases where the issues are closely related to the issues in the case

where the information was generated. The appellants argue that the protection of

work product extends to all subsequent cases, whether the issues are related or not.

In that connection, we note that Bowater cites with approval a case that says "the

mischief engendered by allowing discovery of work product recognized in Hickman

would apply with equal vigor to discovery in future, unrelated litigation." See In Re

Murphy, 560 F.2d 326 at 335 (8th Cir. 1977). The lower court avoided the application

of the Bowater rule to this case by characterizing this part of the opinion as dicta. We

agree that the reference in Bowater to future, unrelated litigation is dicta because the

issues in both cases were closely related; in fact, they were the same, being based

on the same charge of negligence. Whether the dicta should be totally ignored is,

however, another question. See Taylor v. Taylor, 162 Tenn. 482, 40 S.W.2d 393

(1931).

We think that applying the Bowater rule to all future, unrelated litigation

would require that work product be given absolute protection against discovery. With

one or two exceptions, see Duplan Corp. v. Moulinage et Retorderie de Chavanoz,

509 F.2d 730 (4th Cir. 1974), the courts have rejected this argument. See Holmgren

v. State Farm Mut. Ins. Co., 976 F.2d 573 (9th Cir. 1992). Even the Bowater court

recognized that the 1979 report might be discovered -- as relevant to the punitive

damages issue -- if it showed that Bowater recklessly disregarded its contents, and

the report could not be obtained by other means. See Rule 26.02(4)(B), Tenn. R. Civ.

Proc. 

In bad faith cases against insurance companies some courts have

allowed the discovery of opinion work product where "mental impressions are at issue

in the case and the need for the material is compelling." In Charlotte Motor Speedway

v. International Insurance Co., 125 F.R.D. 127 (M.D. N.C. 1989), the court held that,
- 5 -

"many courts faced with the issue of the production of opinion work product have

recognized an exception to Rule 26(b)(3) protection for work product which concerns

activities of counsel 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 that opinion work product of

an attorney could be discovered in a bad faith action against an insurer because its

"substantial equivalent" could not be obtained by other means.

As we read the record in this case the questions addressed to the

appellants proceeded along two lines. The first addressed the issue of "what did you

do?", and the second concerned "what did you learn?" The work product rule does

not cover the first line of questions because "what did you do" does not seek to

discover "documents and tangible things" prepared for the attorneys in anticipation of

litigation. "What did you learn", is covered by Rule 26.02(3) but we think the better

result recognizes an exception where the activities of counsel are directly at issue.

The appellees in this case have a substantial need for the information they are

seeking, and there is no way for them to obtain the "substantial equivalent" 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 award of sanctions for

requiring the appellees to seek a motion to compel. The trial court awarded $150 to

each of the lawyers for the appellees against one of the appellant's lawyers (and not

against the appellants themselves.)
- 6 -

The unusual circumstances under which the parties were proceeding

supply the appellants' best argument. The trial court overruled the appellants' motion

for a protective order at a Friday motion docket and the appellants' depositions were

scheduled to begin on the following Monday. However, because the clerk's office

failed to deliver the appellants' brief to the trial judge in time for the trial judge to fully

consider it, the trial judge indicated to the appellants' lawyer that he might reconsider

the motion upon reading the brief. Thus, a feeling of uncertainty persisted at the

depositions. 

Taking all that into account, however, we think the trial judge's action

was proper. Some of the questions the appellants refused to answer fell in the "what

did you do" category and, in our opinion, were not covered by the work product rule;

and while an air of uncertainty covered the proceedings, the parties were operating

in the face of a ruling by the trial judge with only a hint that he might reverse the ruling.

Under such circumstances, we think the appellants assumed the risk of failing to

answer questions in reliance on a work product defense.

The judgment of the court below is affirmed and the cause is remanded

to the Circuit Court of Davidson County for any further proceedings necessary. Tax

the costs on appeal to the appellants.

_____________________________

BEN H. CANTRELL, JUDGE
CONCUR:

_______________________________

HENRY F. TODD, PRESIDING JUDGE

MIDDLE SECTION

_______________________________

WILLIAM C. KOCH, JR., JUDGE