No. 81-147 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

DENNIS KUIPER, 

Relator and Appellant, 

VS. 

THE DISTRICT COURT OF THE EIGHTH 

JUDICIAL DISTRICT OF THE STATE OF MONTANA 

et al., 

Respondent. 

ORIGINAL PROCEEDING: 

For Appellant: 

Conner, Baiz and Olson, Great Falls, Montana 

Dennis Conner argued, Great Falls, Montana 

Niewald, Risjord and Waldeck, Kansas City, Missouri 

For Respondent: 

Church, Harris, Johnson and Williams, Great Falls, Montana 

Cresap McCracken argued, Great Falls, Montana 

Dzivi, Conklin & Nybo, Great Falls, Montana 

William Conklin argued, Great Falls, Montana 

Stinson, Mag and Frizzell, Kansas City, Missouri 

Submitted: June 10, 1981 

Decided: August 12, 1981 

Filed: August 12, 1981 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of 

the Court. 

Plaintiff, ~ennis Kuiper (relator) , served requests for 

admission asking Goodyear to admit the genuineness of documents 

in the possession of both defendant and relator and sought 

by deposition to orally examine the defendant's executives. 

Defendant, Goodyear Tire and Rubber Company (Goodyear), 

filed a motion seeking a protective order. The District 

Court granted the protective order, thereby preventing the 

relator from discovering the documents and compelling the 

answers. 

The relator petitioned for a writ of supervisory control. 

On April 16, 1981, this Court entered an order accepting the 

application. 

This case results from injuries received by the relator, 

on August 13, 1979. The relator was handling a truck tire 

inflated on a Goodyear K-type multi-piece truck rim. The 

complaint alleges that a side-ring explosively separated 

from the rim base, fracturing relator's skull. The complaint 

sets forth a claim i.n strict liability requiring proof that: 

(1) The product was in a defective condition and unreasonably 

dangerous to the user. (2) The defect caused the accident 

and injuries complained of herein. (3) The defect is traceable to the defendant. 

On November 7, 1980, the relator filed a request for 

admission of genuineness of documents. The contested documents came into the possession of relator's attorney as the 

result of the documents originally being ordered produced 

in a similar but unrelated case. Messick v. Goodyear Tire & 

Rubber Co. (No. 74CV756-W-2 D. Mo. ) . In that case, the 

plaintiff had filed a request for production of documents, 

and after viewing the documents - in camera, the federal 
district judge held that the documents were to be produced. 

After production, that case was settled and dismissed. 

Thereafter, the documents were widely disseminated. The 

relator, and many others, have seen the documents 

since that time. 

The relator, in this case, has sought to depose certain 

of defendant's executives. The questions to which the 

defendant ob j ec ted, pertained to the subject documents and 

to an investigation of the defendant by the National Highway 

Traffic Safety Administration (NHTSA). That investigation 

was commenced in 1970 for the purpose of determining why Ktype truck rims seemed to cause numerous accidents. The 

relator seeks to establish that Goodyear attempted, through 

government influence, to terminate the investigation. The 

relator alleges that Goodyear "covered up" the defect in a 

product, which Goodyear knew to be unsafe, and that the 

relator is entitled to prove such facts to establish a basis 

for punitive damages. 

The relator filed a motion under Rule 37(a), M.R.Civ.P., 

seeking to compel answers to deposition questions by requiring 

attendance of the defendant's employees at trial to testify 

about the disputed matters. The relator's motion was 

denied, and the District Court has ruled that the relator 

cannot inquire either about the documents or the investigation. 

The following issues are now before this Court: 

(1) Whether the District Court erred in determining the 

contested documents fell within the attorney-client privilege 

and the protection of the work product rule, thereby foreclosing the use of those documents in this litigation. 

(2) Whether the District Court erred in precluding relator from using material, already in his possession, for 

any purpose. 
(3) Whether the District Court erred in refusing to 

allow the relator to question Goodyear executives regarding 

the documents and facts surrounding the investigation. 

With respect to the disputed documents, it is important 

to distinguish between two separate issues. Relator's request for admission of genuineness of documents was filed 

pursuant to Rule 36(a), M.R.Civ.P., allowing a party to make 

requests for admission of genuineness of documents covering 

the truth of any matters within the scope of Rule 26(b), M.R. 

Civ.P. Therefore, pursuant to Rule 26(b), a party must only 

admit the genuineness of documents which are not privileged 

and are discoverable under that rule. A resolution of this 

issue involves interpretation of attorney-client privilege 

as defined in section 26-1-803, MCA, and the work product 

rule governed by Rule 26 (b) (3), M.R.Civ.P. 

A separate and distinct issue relates to the District 

Court order forbidding use of the documents. The court 

order prevents the use of this information, in possession of 

relator, for any purpose whatsoever. Resolution of this 

issue involves discussion and application of rights of free 

speech, under article 11, S7, of the Montana constitution, 

and the First Amendment of the United States Constitution. 

With regard to deposition questions propounded by 

relator to Goodyear executives, relator seeks to compel the 

attendance of those witnesses at trial. Though the relief 

sought is inappropriate, we will treat relator's motion as 

one to compel answers under Rule 37 (a), M.R.Civ.P., and 

decide whether relator is entitled to have Goodyear's witnesses answer the questions. 

We resolve the constitutional issue first. The order 

of the trial court prevents relator from using the documents 
in relator's possession, for extra judicial purposes, as well 

as in the case at bar. Such an order has a chilling effect 

upon First Amendment rights and must be subjected to close 

scrutiny. In re Halkin, (D.C. Cir. 1979), 598 F.2d 176. 

In Halkin, the plaintiffs alleged that certain government 

agencies conducted unlawful surveillance of citizens who 

opposed the war in Viet Nam. Plaintiffs sought damages and 

equitable relief for violation of their constitutional 

rights. During the pendency of the case, plaintiffs, 

through discovery, obtained certain documents which the 

government contended would impair United States diplomatic 

and foreign relations, reveal CIA intelligence sources, and 

implicate the privacy interests of third persons. Plaintiffs 

they 

advised the government that / intended to release the 

inf ormation to the news media and, thereafter, defendant 

moved for a protective order pursuant to Rule 26(c). Defendant 

argued that public disclosure of the documents would be 

"prejudicial to the defendants ' right to adjudication of the 

issues" in an unbiased climate and would deny the defendant a 

fair trial. Pla inti£ fs responded by contending that the 

protective order would violate the plaintiffs' First Amendment 

right. The United States District Court signed the defendant's 

proposed restraining order and theplaintiffspetitioned the 

court of appeals for a writ of mandamus, seeking to vacate 

the District Court order. 

Judge Bazelon, writing for the court acknowledged that 

attorneys have historically been officers of the courts and 

that they have a legal and ethical responsibility to safeguard the right to a fair trial. However, Judge Bazelon said: 

". . . But lawyers' responsibility to protect the 

fairness of the judicial process does not mean that 

lawyers and litigants surrender their First Amendment rights at the courthouse door. Even public 
officials who have special responsibilities to the 

court do not necessarily have a 'more severely curtailed' right to freedom of expression than 'the 

average ci ti zen ' . " 

In Halkin, Judge Bazelon cited with approval, Chase 

v. Robson (7th Cir. 1970), 435 F.2d 1059, wherein the court 

held that an order barring counsel and parties from making 

public statements about the merits of the case, was unconstitutional. The Robson court concluded that the order cons ti tuted 

". . . a prior restraint on protected First Amendment conduct". 

The court in Halkin acknowledged that a protective 

order may not constitute a prior restraint, but determined 

that the issue of "prior restraint" was not determinative. 

The court said: 

"We do not believe, however, that the proper resolution of this case in the end turns on whether this 

order can be termed a prior restraint. We observe 

the admonition of Justice Frankfurter that the term 

'prior restraint' should not be used as 'a talismanic 

test,' Kingsley Books, Inc. v. Brown, 354 U.S. 436, 

441, 77 S.Ct. 1325 (1957), and do not begin our examination with an almost insurmountable presumption 

against the validity of this order. However, the 

fact that the order poses many of the dangers of a 

prior restraint is sufficient to require close 

scrutiny of its impact on protected First Amendment 

expression." 598 F.2d at186. 

Noting that the United States Supreme Court had stressed 

that litigation may be "a vehicle for effective political 

expression and association, as well as a means of communicating 

useful information to the public", In re Primus (1978), 436 

U.S. 412, 431, 98 S.Ct. 1893, 1904, 56 L.Ed.2d 417, the court 

stated that ". . . [llitigation itself is a form of expression 

protected by the First Amendment". 598 F.2d at 187. The 

court in Halkin, concluded that a First Amendment right 

extends to use of discovery materials. 598 F. 2d at 187. 

Before a trial court can enter a protective order 

restraining free expression, the court must find that three 

criteria exist: (1) The harm posed by dissemination must be 
substantial and serious. (2) The restraining order must be 

narrowly drawn and be precise. (3) There must be no alternative means of protecting the public interest which intrudes 

less directly on expression. Nebraska Press Ass'n v. 

Stuart (1976), 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683; 

In re Halkin, supra. 

In assessing the propriety of a protective order in 

each case, the trial court must consider and make necessary 

findings on each element of the standard. In this case no 

findings have been made which justify the court order that 

"counsel for plaintiff are hereby prohibited from making any 

further use whatsoever of such privileged documents and 

exhibits in this action." This portion of the court's order 

unconstitutionally proscribes plaintiff's freedom of expression 

and must be reversed. 

The District Court held that the contested documents, 

exhibits A-E, and G-M were entitled to protection under 

attorney-client privilege and work product. The effect of 

this ruling is to foreclose use of the documents when this 

matter comes to trial. 

Section 26-1-803, MCA, provides: 

"An attorney cannot, without the consent of his client, 

be examined as to any communication made by the 

client to him or his advice given thereon in the course 

of professional employment." 

Work product is governed by Rule 26 (b) (3) , M.R.Civ.P., 

which provides: 

"Subject to the provisions of subdivision (b)(4) 

of this rule, a party may obtain discovery of 

documents and tangible things otherwise discoverable under subdivision (b) (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. " 

Before discussing application of the attorney-client 

privilege and the work productrule,we must resolve the 

question of waiver. Relator contends that the documents 

here in question have been widely disseminated without 

objection from Goodyear. On the other hand, Goodyear contends 

that the documents were involuntarily produced pursuant to court 

order and that under these circumstances a waiver did not occur. 

Waiver is the voluntary relinquishment of a known 

right. Massett v. Anaconda (1981), - Mont. -1 - P. 2d -, 

38 St.Rep. 961. Goodyear's response to court process does 

not constitute such a waiver. State ex rel. Union Oil Co. 

of Cal. v. District Court (1972), 160 Mont. 229, 503 P.2d 

1008. However, the waiver could subsequently be found 

should the evidence show that, thereafter, Goodyear voluntarily 

disseminated the documents in question. A waiver could also 

be found if dissemination was made by persons not connected 

with Goodyear. If a sufficiently wide dissemination of the 

materials was found to have occurred, and Goodyear, knowing 

of this, took no legal action to protect against dissemination, 

then the voluntary relinquishment of a right could be found. 

The record before us is insufficient to make this determination. 

Upon remand of this matter, the District Court is directed 

to hold a hearing with respect to evidence bearing upon the 

waiver question and to make findings accordingly. 

The balance of our discussion concerning the attorneyclient privilege and the application of the work product 
rule, will apply should the trial court find that a waiver 

has not occurred. If a waiver is found, then the existence 

of privilege is rendered moot. 

The trial court's order dated March 13, 1981, granting 

a protective order to Goodyear, correctly identifies exhibit 

A as consisting of reports concerning closed product liability 

litigation prepared by Goodyear's in-house counsel. However, 

the order's reference to exhibit B as being a communication 

between house counsel Rigrish and other Goodyear personnel 

is inaccurate. Exhibit B is a brief note from a Goodyear 

employee denominated "Gerb" forwarding excerpts from a 

deposition taken in another "rim" case. Exhibits D and E 

are correctly identified as communications between house 

counsel Rigrish and other Goodyear personnel. The order 

mistakenly identifies exhibit J as being a communication 

between in-house lawyer Rigrish and Goodyear's liability 

carrier; exhibit J is a memorandum from one employee of a 

liability insurance company to another employee within the 

same company. Exhibit M is mistakenly identified in the 

order as a communication between lawyer Rigrish and Goodyear's 

liability carrier; exhibit M is a letter written by a representative of the Aetna Insurance Company addressed to Rigrish of 

Goodyear. Exhibits C, HI I, K and L are correctly identified 

in the order as being communications from Rigrish to liability 

insurance carriers. Exhibit G is correctly identified as a 

communication from Rigrish to retained counsel representing 

Goodyear in similar but unrelated litigation. 

The subject matter and author of each exhibit is critical 

to determining whether attorney-client privilege is applicable. 

That privilege only applies statutorily in Montana to communications made by a client to his attorney and legal advice given 

in response thereto, during the course of professional 
employment. Section 26-1-803, MCA. 

~xhibit Ais a compilation of case histories prepared 

by ~igrish for his superior at Goodyear. Attorney-client 

privilege does relate to legal advice given by house counsel 

to the corporate employer. State ex rel. Union Oil Co. of 

Cal. v. District Court, supra. 

A careful study of each of the case histories contained 

in exhibit A shows that the contents of the document cannot 

be accurately characterized as "legal advice". Rigrish analyzed closed product liability files and reported to his 

superior the results obtained in each of those files. The 

files were closed at the time the document was prepared. The 

report was apparently made by Rigrish for the purpose of 

allowing his superior to evaluate his work and for the 

purpose of keeping corporate management advised about the 

history of product liability litigation. It is important to 

note that no legal advice is being given by Rigrish to his 

superior or corporate management with respect to pending 

litigation files. Under these circumstances the attorneyclient privilege as statutorily defined in Montana, does not 

apply to exhibit A. 

Exhibit B is correspondence from Goodyear personnel to 

Rigrish and, though the contents of the note are rather 

ambiguous, it would seem to be covered by attorney-client 

privilege. However, the enclosure appears to be deposition 

excerpts which would be part of the public record. 

Exhibits D and E are letters from Rigrish to other Goodyear personnel. They appear to cover matters contemplated 

by the attorney-client privilege. 

Exhibits C, HI I, K and L are communications between 

Rigrish and personnel employed by Goodyear's liability 

carriers. Rigrish is not a lawyer for those liability 
carriers. There is no indication that the recipients of the 

communications are attorneys for Rigrish. Therefore, the 

attorney-client privilege does not apply to these documents. 

Exhibit G is a communication from Goodyear to retained 

counsel. Exhibit G is clearly protected by the privilege. 

Exhibit J is a document prepared by an employee of the 

liability insurance company and forwarded to other personnel 

within the same insurance company. If any privilege exists, 

it exists for the benefit of that liability insurance company 

and would have to be claimed by that company. 

Exhibit M is a communication from Aetna Insurance 

Company to Rigrish. Rigrish is not an attorney for Aetna 

Insurance Company and attorney-client privilege is, therefore, 

inapplicable. 

Exhibits A, C, H, I, J, K, L and M are not covered by 

attorney-client privilege. Exhibits B, D, E and G may be 

protected . 

The work product rule is broader in its application 

than the attorney-client privilege, but it is not an absolute 

privilege. By its terms the rule governs not only the 

attorney and his client, but also a party's representative, 

including his consultant, surety, indemnitor, insurer or 

agent. The rule protects materials prepared during litigation or in anticipation of litigation and provides for the 

disclosure of such material only upon a showing that the 

party seeking discovery has a substantial need for the 

material in preparation of the case and is unable, without 

undue hardship, to obtain the materials through other means. 

The rule further directs that the court protect against the 

disclosure of the mental impressions, conclusions, opinions, 

or legal theories of an attorney or other representative of 

a party concerning the litigation. Rule 26 (b) (3) , M.R.c~v.P., 
may afford protection to much of the documentary evidence 

here in dispute. 

In applying the work product rule, we must make the 

following determinations : (1) Does the rule apply where 

material has been discovered and is in the possession of 

opposing counsel? (2) Does the rule apply to terminated 

litigation? (3) Does the rule apply where there is a claim 

but the reality of litigation may be very speculative? 

A literal interpretation of Rule 26(b) (31, M.R.Civ.P., 

would confine application of the rule to those instances 

where discovery is sought. Relator does not here seek 

discovery. Relator has possession of the subject documents 

and seeks only to lay foundation for those documents. We 

feel that the work product rule must be given a liberal 

interpretation in order to effectuate its purpose. The 

right granted under the rule can be waived and such a waiver 

will be the subject of the evidentiary hearing hereinbefore 

ordered. However, we here hold that the work product rule 

legitimately can form the basis of a protective order even 

though the "work product" is in the possession of the adverse 

party . 

The question of whether "terminated litigation" is contemplated by the work product rule, was determined in In re 

Murphy (8th Cir. 1977), 560 F. 2d 326. In that case Chief 

Judge Gibson, writing for the court, said: 

"In view of the Hickman rationale and the policies 

of Rule 26 (b) (3), we conclude that the work product 

privilege applies to documents prepared in anticipation of terminated litigation. The primary purpose of the work product privilege is to assure 

that an attorney is not inhibited in his representation of his client by the fear that his files will 

be open to scrutiny upon demand of an opposing party. 

Counsel should be allowed to amass data and commit 

his opinions and thought processes to writing free 

of the concern that, at some later date, an opposing 

party may be entitled to secure any relevant work 
product documents merely on request and use them 

against his client. The work product privilege would 

be attenuated if it were limited to documents that 

were prepared in the case for which discovery is 

sought. What is needed, if we are to remain faithful 

to the articulated policies of Hickman, is a perpetual protection for work product, one that extends 

beyond the termination of the litigation for which the 

documents were prepared. Any less protection would 

generate the very evils that the Court in Hickman 

attempted to avoid." 560 F.2d at 326. 

There is a division of authority on this question. Cases 

supporting the opposite view are United States v. International 

Business Machines Corp., (S.D. N.Y. 1974), 66 F.R.D. 154, 178, 

and Honeywell, Inc. v. Piper Aircraft Corp., (M.D. Pa. 1970), 

50 F.R.D. 117, 119. We feel that the better reasoned rule 

supports application of the work product rule to terminated 

litigation. 

Rule 26 (b) provides that materials prepared - in anticipation 

of litigation can only be produced upon a showing of substantial 

need and inability to obtain the materials elsewhere. 

However, that portion of the rule which protects the mental 

impressions and legal theories of an attorney only refers 

specifically to "the litigation". Subsection 3 of Rule 

26 (b) , in its last sentence, states: "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. " We must determine whether to apply the protection 

afforded mental impressions of an attorney to those impressions rendered during the investigation of a claim where no 

litigation is in progress. 

In In re Murphy, supra, the government filed motions 

seeking to discover legal documents and internal memoranda 

that were prepared by law firms representing several large 

corporate clients. The law firms' representation of these 
clients had existed for many years. The documents consisted 

of internal memoranda, notes, summaries, outlines and chronologies prepared for use in then current and anticipated 

litigation. The documents were characterized by counsel as 

private working papers of trial lawyers that included a type 

of "devil's advocacy" made in an effort to outline the 

inferences that might be drawn by a "skilled and imaginative" 

adversary. These documents were not sent to or shown to the 

clients. The 8th Circuit Court of Appeals held that such 

documents were protected by the "mental impressions" provision 

of the work product rule even though some documents related to 

anticipated litigation. We agree that such protection 

should be afforded even though litigation is not in progress. 

When a claim file is opened, there is always some prospect 

of litigation and an investigation must be conducted geared 

to the ultimate eventuality of litigation. Theref ore, we 

feel that work product protection must be afforded from the 

time the claim file is opened. 

Exhibit A was not prepared in anticipation of litigation 

and only relates to an analysis of closed files. It clearly 

is not covered by the work product rule. 

The balance of the exhibits in question are subject to 

the protections of Rule 26 (b) (3) , M.R.Civ.P., but such 

protection is not absolute. The materials may not be the 

proper subject of a protective order if relator is able to 

make a showing that he "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." However, those portions of the 

documents which relate to the mental impressions of the 

author of the document, receive a greater protection. We 

agree with the following rationale from In re Murphy, supra, 
wherein the court said: 

"It is clear that opinion work product is entitled 

to substantially greater protection than ordinary 

work product. Therefore, unlike ordinary work 

product, opinion work product cannot be discovered 

upon a showing of substantial need and an inability 

to secure the substantial equivalent of the materials by alternate means without undue hardship. 

See Fed.R.Civ.P. 26(b)(3). In our view, opinion work 

product enjoys a nearly absolute immunity and can be 

discovered only in very rare and extraordinary circumstances. See Hickman v. Taylor, supra. Our unwillingness to recognize an absolute immunity for opinion 

work product stems from the concern that there may 

be rare situations, yet unencountered by this court, 

where weighty considerations of public policy and a 

proper administration of justice would militate 

against the nondiscovery of an attorney's mental 

impression. Absent such compelling showing, the 

attorney's opinion work product should remain immune from discovery. I' (Footnotes omitted. ) 560 F. 2d 

at 337. 

Upon remand, the trial court will have the burden of 

applying this law to each of the documents involved in the 

case. If the trial court finds that there was a waiver, 

then the application of this rule becomes moot. 

In its order, the District Court foreclosed relator from 

deposing Goodyear executives regarding facts contained in 

the disputed documents and also from interrogating those 

witnesses about the National Highway Traffic Safety Administration investigation. The court based its protective order 

upon "relevancy" and "public policy". 

The basis for a witness's refusal to testify is set 

forth in Rule 26(c), M.R.Civ.P., which provides: 

"Upon motion by a party or by the person from whom 

discovery is sought, and for good cause shown, the 

court in which the action is pending or alternatively, 

on matters relating to a deposition, the court in 

the district where the deposition is to be taken 

may make any order which justice requires to protect a party or person from annoyance, embarrassment, 

oppression, or undue burden or expense . . ." 

The rule does not provide for refusal on "public policy" 

grounds. Were this Court to expand the rule and allow for a 

"public policy" basis for refusal to testify, then, given 

the facts of this case, such a basis would not foreclose inquiry. 
This Court has previously found strong public policy 

reasons for imposing strict liability in tort. In Brandenburger v. Toyota Motor Sales (1973), 162 Mont. 506, 513 P.2d 

268, we said: 

"The essential rationale for imposing the doctrine 

of strict liability in tort is that such imposition 

affords the consuming public the maximum protection 

from dangerous defects in manufactured products by 

requiring the manufacturer to bear the burden of 

injuries and losses enhanced by such defects in its 

products. . ." 

The District Court order states that "disclosure in 

this action of the material and information Goodyear was 

compelled to submit to the National Highway Traffic Safety 

Administration investigation would clearly discourage frank 

and open communications with the government contrary to the 

strong public policy interests in such ,an investigation." 

It should here be noted that Goodyear does not have the 

option of disclosing to the federal government. Such disclosure 

is mandated by law. In Barry v. Manglass (1976), 389 N.Y.S.2d 

870, 877, the court said: 

"As an additional answer to General Motors' public 

policy argument (that the admission of such recall 

letters would discourage manufacturers from announcing a possible defect), it is merely necessary 

to point out that such announcement was not a voluntary act, but one mandated by Federal statute 

(see Motor Vehicle Safety Act of 1966, supra) ." 

This Court has recognized a strong public policy in 

protecting members of the public from injury by defective 

products. In Brown v. North American Manufacturing Co. (1977), 

176 Mont. 98, 516 P.2d 711, Justice Harrison, writing for the 

majority, said: "We reject any rule which would operate to 

encourage misdesign." 

We hold that public policy militates in favor of permitting discovery of facts surrounding the "recall campaign" and 

the investigation by the National Highway Traffic Safety 

Administration. A complete public awareness of investigations 
concerning defective products is in the public interest and 

should be facilitated. We find this litigation to be a 

proper forum for such disclosure. 

The District Court order granting protection to Goodyear's 

witnesses, further justified its holding on the basis of 

"relevancy". Relator here seeks punitive damages and by way 

of discovery seeks to develop evidence for the purpose of 

proving malice. 

Relator's deposition questions are designed to prove 

Goodyear knew it had a defective product and attempted to 

prevent public knowledge of that defect. Such facts would 

tend to prove malice and are relevant to the issues pleaded. 

The District Court order precluding relator from deposing 

Goodyear witnesses with respect to the National Highway 

Traffic Safety Administration investigation and the "recall 

campaign" is reversed. That portion of the order which 

prevents relator from inquiring about the disputed documents 

is governed by the law enunciated in this opinion with 

respect to those documents. If a particular document is not 

protected by either the attorney-client privilege or the 

work product rule, then inquiry may be made about that document during the taking of depositions from Goodyear executives. 

If a document is privileged, such inquiry may not be made. 

Accordingly, this matter is remanded to the District 

Court for proceedings in conformity with this opinion. /1 

We I concur: 

Chief Justice A 1 
,,<' 

N' Justices