### 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 DISTRICTOF THE STATE OF 

### MONTANA et al., Respondent.

ORIGINAL PROCEEDING: ForAppellant: 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, 1981Mr. 

### JusticeFrank 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 inthe 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 

### writof supervisory control. On April 16, 1981, thisCourt entered an order accepting the application. This case results from injuriesreceived by the relator, on August 13, 1979. The relatorwas 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 

### rimbase, fracturing relator's skull. The complaint sets forth a claim 

### i.n strictliabilityrequiring proof that: (1)

### The product was ina 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 resultof the documents originally being ordered produced ina 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 

## - incamera, the federaldistrictjudge held that the documents 

### were tobe produced. After production, that case was settled and dismissed. Thereafter, the documents 

### werewidely 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 towhich the defendant ob jected, pertained to the subject documents and to an investigation of the defendant by the National Highway Traffic SafetyAdministration (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 thatGoodyear attempted, through government influence, to terminate the investigation. The relator alleges thatGoodyear "covered up" the defect ina product, which Goodyear knew tobe unsafe, and that the relator 

### is entitled toprove 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 attrial to testify about the disputed matters. The relator's motion was denied, and the DistrictCourt 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 DistrictCourt erred indetermining the contested documents fellwithin 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 DistrictCourt erred inprecluding 

### relator from using material, already inhis possession, for any purpose.

### (3)Whether the DistrictCourt erred inrefusing to allow the relator toquestion Goodyear executives regarding the documents and facts surrounding the investigation. With respect to the disputed documents, 

### it

### is important todistinguish between two separate issues. Relator's 

### request for admission of genuineness of documents was filed pursuant toRule 36(a),M.R.Civ.P., allowing a party tomake 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 toRule 26(b),a party must only admit the genuineness of documents which arenot privileged and 

### are discoverable under that rule. A 

### resolution of this issue involves interpretation of attorney-client privilege

asdefined insection 26-1-803, MCA, 

### and the work product rule governed by Rule 26(b)

### (3),M.R.Civ.P. A 

### separate and distinctissuerelates to the District Court order forbidding use of the documents. The court order prevents the use of this information, inpossession 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 FirstAmendment of the United StatesConstitution. With regard todeposition questions propounded by relator toGoodyear executives, relator seeks to compel the attendance of those witnesses attrial. Though the relief sought 

### is inappropriate, we 

### will treatrelator'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 courtprevents relator from using the 

### documentsinrelator's possession, for extra judicial purposes, as

### well

asin the case atbar. Such an order has a chilling effect upon FirstAmendment rights and must be subjected to close scrutiny. InreHalkin, (D.C. Cir. 1979), 598 F.2d 176. In Halkin,the plaintiffsalleged that certain government agencies conducted unlawful surveillance of citizens who opposed the war inViet Nam. Plaintiffssoughtdamages 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 information to the news media and, thereafter, defendant moved for 

### a protective order pursuant to Rule 

### 26(c). Defendant argued thatpublic disclosure of the documents would be "prejudicial to the defendants

## ' rightto adjudication of the issues" inan unbiased climate and would deny the defendant a fair trial. Plainti£ fsresponded by contending that the protective order would violate the plaintiffs' FirstAmendment right. The United StatesDistrictCourt signed the defendant's proposed restraining order and theplaintiffspetitioned the court of appeals for a 

### writof mandamus, seeking tovacate the DistrictCourt 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 toprotect the fairness of the judicial process does not mean that lawyers and litigants surrender their FirstAmendment rights atthe courthouse door. Even public

### officials who have special responsibilities to the courtdo not necessarily have a 'more severely curtailed' right tofreedom of expression than 'the average ci tizen

## '

# ." InHalkin, Judge Bazelon citedwith approval, Chase

v. Robson (7thCir. 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 consti

### tuted 

# ".

. . a prior restrainton protected FirstAmendment conduct".

The court inHalkin acknowledged that a protective order may not constitute 

### a prior restraint, but determined that the issueof "priorrestraint" was not determinative. The court said: "We do notbelieve, however, that the proper resolution of this

### case inthe end turns on whether this order can be termed a prior restraint. We 

### observe the admonition of JusticeFrankfurter 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 notbegin our examinationwith an almost insurmountable presumption against thevalidity of this order. However, the fact that the order poses many of the dangers of a prior restraintis sufficient torequire close scrutiny of itsimpact on protected FirstAmendment expression." 598 F.2d at186. Noting that theUnited States Supreme Court had stressed that litigationmay be "a vehicle for effectivepolitical expression and association, as

### well asa means of communicating useful information to the public", InrePrimus (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 FirstAmendment". 598 F.2d at187. The courtinHalkin, concluded that a FirstAmendment right extends touse of discovery materials. 598 F.

### 2d at187. Before a trialcourtcan enter a protective order restraining free expression, the courtmust 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 alternativemeans of protecting the public interestwhich intrudes 

### less directlyon 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 courtmust 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 forplaintiff arehereby 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, exhibitsA-E, 

### and 

### G-M were entitled toprotection under attorney-client privilege and work product. The effectof 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 toany communication made by the clientto him or his advice given thereon in the course of professional employment." Work product isgoverned by Rule 26

### (b)(3)

## , M.R.Civ.P., which provides: "Subject tothe provisions of subdivision (b)(4) of thisrule, a party may obtain discovery of documents and tangible things otherwise discoverableunder subdivision (b)(1)

### of this rule and prepared inanticipation of litigation or for trial by or for another party or by or for that other party

## 's representative (includinghis attorney, consultant, surety, indemnitor, insurer or agent) only upon a showing that the party seeking discovery has substantial need of thematerials inthe preparation of his case and thathe 

### isunable without undue hardship to

### obtain the substantial equivalent of the materialsby other means. In ordering discovery of such materials when the required showing has been made, the court shallprotect 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 thework productrule,we must resolve the question of waiver. Relator contends that the documents here inquestion 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 isthe voluntary relinquishment of a known right. Massett v. Anaconda (1981), 

# - Mont. -1 

## - P.

### 2d 

## -, 38 St.Rep. 961. Goodyear's response to courtprocess does not constitute such a waiver. Stateex 

### 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 inquestion. A 

### waiver could also be found if dissemination was made by persons not connected with Goodyear. If 

### a sufficientlywide dissemination of the materials was found to have occurred, and Goodyear, knowing of this, took no legal action toprotect against dissemination, then the voluntary relinquishment of a right could be found. The record before us 

### is insufficient tomake this determination. Upon remand of thismatter, the District Court 

### is directed tohold a hearing with respect to evidence bearing upon the waiver question and tomake findings accordingly. The balance of our discussion concerning the attorneyclientprivilege and the application of the work product

### rule, willapply 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 litigationprepared by Goodyear's in-house counsel. However, the order's reference to exhibit B 

### asbeing a communication between house counsel Rigrish and other Goodyear personnel 

### isinaccurate. Exhibit B 

### is a brief note from a Goodyear employee denominated "Gerb" forwarding excerpts from a deposition taken inanother "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 

### asbeing 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 

### ismistakenly identified inthe order as a communication between lawyer Rigrish and Goodyear's liability carrier; exhibit M 

### is a letter written by a representativeof the Aetna Insurance Company addressed to Rigrish of Goodyear. Exhibits C, HI I, K 

### and L 

### arecorrectly identified inthe order asbeing communications from Rigrish to liability insurance carriers. Exhibit G 

### iscorrectly 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 inMontana to communicationsmade by 

### a client tohis attorney and legal advice given inresponse thereto, during the course of professionalemployment. Section 26-1-803, MCA. ~xhibit A 

### isa compilation of case histories prepared by ~igrish for his superior atGoodyear. Attorney-client privilege does relate to legal advice given by house counsel to the corporate employer. State ex rel. Union OilCo. of Cal. 

### v. DistrictCourt, supra. A careful study of each of the case histories contained inexhibitA shows that the contents of the document cannot be accuratelycharacterized as "legal advice". Rigrish analyzed closed product liability filesand reported to his superior the results obtained in each of those files. The files

### were closed atthe 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 corporatemanagement advised about the history of product liability litigation. It 

### is important to note that no legal advice 

### isbeing given by Rigrish to his superior or corporatemanagement with respect to pending litigation files. Under these circumstances the attorneyclientprivilege as statutorilydefined inMontana, does not apply to exhibit A. Exhibit B 

### is correspondence from Goodyear personnel to Rigrish and, though the contents of the note arerather ambiguous, 

### itwould seem tobe 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 

### isnot a lawyer for those liabilitycarriers. There 

### is no indication that the recipients of the communications areattorneys 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 

### isclearlyprotected 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 toRigrish. Rigrish 

### isnot 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 

### isbroader 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 inanticipation 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 inpreparation 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 themental 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 tomuch of the documentary evidence here indispute. 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 litigationmay 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 rulemust be given a liberal interpretation inorder toeffectuate 

### itspurpose. The right granted under the rule can be waived and such a waiver 

### willbe the subject of the evidentiaryhearing 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 inIn

### re Murphy (8thCir. 1977), 560 F.2d 326. In that case Chief Judge Gibson, writing for the court, said: "Inview of the Hickman rationale and the policies of Rule 26(b)(3), 

### we conclude that the work product privilege applies to documents prepared inanticipation of terminated litigation. The primary purpose of the work product privilege 

### is to assure that an attorney 

### is not inhibited inhis representation of his clientby the fear thathis 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 towriting free of the concern that, atsome 

### later date, 

### an opposing party may be entitled to secure any relevant work

### product documents merely on request and use them againsthis client. The work product privilege would be attenuated if itwere limited to documents that were prepared inthe case for which discovery 

### is sought. What 

### isneeded, if 

### we are to remain faithful to the articulated policies of Hickman, 

### isa perpetual protection for work product, one thatextends beyond the termination of the litigation forwhich the documents were prepared. Any less 

### protection would generate the very evils that the Court inHickman attempted to avoid." 560 F.2d at326. There 

### isa division of authority on thisquestion. Cases supporting the opposite view areUnited Statesv. 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 thatmaterials prepared - 

### inanticipation of litigation can only be produced upon a showing of substantial need and inability to obtain the materials elsewhere. However, thatportion of the rulewhich protects the mental impressions and legal theories of an attorney only refers specifically to "the litigation". Subsection 3of Rule 26(b)

## , in

### its last sentence, states: "Inordering discovery of such materials when the required showing has been made, the court shallprotect 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 impressionsrendered during the investigation of a 

### claim where no litigation is

### inprogress. In InreMurphy, supra, the government filedmotions seeking todiscover legal documents and internalmemoranda thatwere prepared by law firms representing several large corporate clients. The law firms' representation of theseclientshad existed formany years. The documents consisted of internalmemoranda, notes, summaries, outlines and chronologies prepared for use inthen 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 inan effort to outline the inferences thatmight 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 inprogress. When a claim file

### isopened, there 

### is always some prospect of litigation and an investigation must be conducted geared to the ultimate eventuality of litigation. Therefore, we feel thatwork product protection must be afforded from the time the claim file

### is opened. Exhibit A was not prepared inanticipation of litigation and only relates to an analysis of closed files. Itclearly 

### is not covered by the work product rule. The balance of the exhibits inquestion are subject to the protections of Rule 26(b)

### (3)

## ,M.R.Civ.P., but such protection 

### isnot 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 inthe preparation of his case and that he isunable 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 reMurphy, supra,wherein the court said: "It

### is clear that opinion work product 

### isentitled to substantiallygreater protection than ordinary work product. Therefore, unlike ordinarywork 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 alternatemeans 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 invery rare and extraordinary circumstances. See Hickman v. Taylor, supra. Our unwillingness to recognize an absolute immunity for opinion work product 

### stemsfrom 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 at337. Upon remand, the trial court

### willhave 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 thisrule becomes moot. In 

### its order, the District Court foreclosed relator from deposing Goodyear executives regarding factscontained in the disputed documents and also from interrogating those witnesses about the National Highway Traffic SafetyAdministration investigation. The courtbased 

### itsprotective order upon "relevancy" and "publicpolicy". The basis for a witness's refusal to testify 

### is 

### set forth inRule 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 inwhich the action 

### ispending or alternatively, on matters relating to a deposition, the court in the districtwhere the deposition 

### is tobe taken may make any order which justice requires toprotect 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 strictliability 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 strictliability in tort

### is that such imposition affords the consuming public the maximum protection from dangerous defects inmanufactured products by requiring the manufacturer tobear the burden of injuries and losses enhanced by such defects in

### its products. 

# .."

The DistrictCourt order 

### states that "disclosure in this action of the material and information Goodyear was compelled to submit to the National Highway Traffic Safety Administration investigationwould 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 

### ismandated 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 (thatthe admission of such recall letterswould discourage manufacturers from announcing a possible defect), 

### it 

### ismerely necessary topoint out that such announcement was not a voluntary act, but one mandated by Federal statute (seeMotor Vehicle SafetyAct of 1966, supra)

# ." This Court has recognized a strong public policy in protecting members of the public from injury by defective products. InBrown 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 thatpublic policy militates infavor of permitting discovery of facts surrounding the "recall campaign" and the investigationby the National Highway Traffic Safety Administration. A complete public awareness of investigationsconcerning defective products 

### is in the public interest and should be facilitated. We find this litigation to be a proper forum for such disclosure. The DistrictCourt 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 factswould tend to prove malice and arerelevant to the issues pleaded. The DistrictCourt order precluding relator from deposing Goodyear witnesses with respect to the National Highway Traffic SafetyAdministration investigation and the "recall campaign" 

### isreversed. That portion of the order which prevents relator from inquiring about the disputed documents 

### isgoverned 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 

### isprivileged, such inquirymay not be made. Accordingly, thismatter 

### is remanded to the District Court for proceedings inconformity with this opinion. /1

I We concur:

Chief Justice A 1,,<' N' 

### Justices