No. 89-96 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, ex rel., 

BURLINGTON NORTHERN RAILROAD 

COMPANY, 

Relator, 

-vsTHE DISTRICT COURT OF THE EIGHTH 

JUDICIAL DISTRICT OF THE STATE OF 

MONTANA in and for the County of 

Cascade, HONORABLE THOMAS M. 

McKITTRICK, Judge thereof, 

Respondent. 

ORIGINAL PROCEEDING: 

COUNSEL OF RECORD: 

For Relator: 

James A. Robischon (argued); Charles Deardm; Murphy, 

Robinson, Heckathorn & Phillips, ~alis~ell7 Montana 

For Respondent: 

Terry Trieweiler (argued), Whitefish, Montana 

Submitted: JU~Y 7, 1989 

Decided: September 19, 1989 

Filed: 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

This application for a writ of supervisory control 

arises from an order by the District Court of the Eighth 

Judicial District, Cascade County, Montana. We accept jurisdiction of this application, and after receipt of briefs and 

oral argument, we order supervisory control. 

Burlington Northern Railroad Company (Burlington Northern) was ordered by the District Court to answer certain 

interrogatories and was enjoined from any further discovery 

until compliance with the order. The District Court further 

ordered Burlington Northern to pay plaintiff's attorney fees 

and costs in bringing the motion to compel discovery. We 

affirm in part and reverse in part. 

This action arises from injuries received by Mr. 

Gilliland, an employee of Burlington Northern Railroad in 

Whitefish, Montana. On August 4, 1988, at approximately 2:50 

a.m., while he was working as a utility foreman assisting a 

switch crew in switching operations, Mr. Gilliland was injured. A railroad car ran over him during a switching movement, causing a traumatic amputation of his right leg above 

the knee, and his right arm above the elbow. 

On August 4, 1988, just hours after the accident, a 

senior claims representative of Burlington Northern, Mr. Dale 

Roos, interviewed the two crew members who were operating the 

train which hit Mr. Gilliland. Mr. Roos also interviewed the 

supervising yardmaster. There were no eye witnesses to the 

accident. Mr. Roos also photographed the accident site that 

same morning. This action was filed on August 26, 1988, 

pursuant to Federal Employer's Liability Act. 

On August 30, 1988, plaintiff served interrogatories, 

requests for production, notice of deposition, and deposition 

subpoena duces tecum on defendant. This discovery included 
requests for defendant's entire investigative file, copies of 

Burlington Northern's safety rules and films, photographs of 

the accident site, investigative reports, and witness 

statements. 

On October 12, 1988, plaintiff deposed several witnesses, including Mr. Roos, and the Burlington Northern employees 

whose statements had been taken immediately after the accident. The subpoena duces tecum, which had been issued to Mr. 

Roos, requested that he bring to the deposition his entire 

investigative file. The subpoena duces tecum specifically 

requested a number of items, including the photos of the 

accident site, and the witness statements he had taken. 

However, Mr. Roos did not bring the photographs to the deposition, stating rather that he had turned them over to defendant's lawyers. Mr. Roos did bring his file to the 

deposition, but the witness statements and a four-page list 

of safety materials with Mr. Roos' handwritten notations, had 

been removed. At the deposition he did produce handwritten 

statements of the Burlington Northern employees. 

On October 17, 1988, defendant served interrogatories 

and requests for production on plaintiff. Plaintiff's deposition by Burlington Northern was scheduled for November 10, 

1988. During the late afternoon of November 9, plaintiff's 

attorney called defendant to request that the photographs of 

the accident scene be brought to the deposition. Co-counsel 

of the attorney who would be taking plaintiff's deposition 

agreed that the photos would be brought to the deposition. 

On November 10 the plaintiff and counsel for both parties arrived for the deposition. Plaintiff's counsel requested that plaintiff be allowed to view the photos prior to 

the commencement of the deposition. Counsel for Burlington 

Northern stated that he had not been informed that the prior 

viewing of the photographs was a condition to plaintiff's 
deposition. Counsel for Burlington Northern agreed to allow 

plaintiff to view the photos during a recess or after the 

deposition had been concluded, but he refused to delay commencement of the deposition while the plaintiff viewed the 49 

photographs in question. Plaintiff's counsel refused to 

begin the deposition before the plaintiff had the opportunity 

to view the photographs of the accident site. As a result of 

this disagreement, plaintiff's counsel would not allow the 

deposition to proceed. Counsel for Burlington Northern 

emphasized that he would subpoena plaintiff for a future 

deposition. 

On the day following the aborted deposition plaintiff 

filed a motion to compel discovery and for sanctions. Plaintiff's motion to compel requested that the court order production of defendant's entire investigative file, disclosure 

of the identity of all experts consulted by defendant, copies 

of Burlington Northern safety rules and films, all photographs of the accident scene taken the morning of the injury, 

and all statements of crew members, employees, or witnesses. 

The motion included a request that defendant be prohibited 

from conducting any further discovery until ten days after 

compliance with the order, and also included a request for 

expenses incurred in bringing the motion to compel. On 

December 2, 1988, defendant filed a motion to compel discovery of answers to interrogatories and requests for production 

which had been served on plaintiff on October 17, 1988, but 

had not been answered. Defendant also requested a protective 

order regarding the identities of the non-witness experts, 

the witness statements obtained by Mr. Roos, the identity of 

Burlington Northern employees whose earnings were requested, 

and all privileged information contained in its file. 

On December 5, 1988, the court heard argument on these 

motions and ordered further briefing on whether defendant 
should be compelled to disclose identities of non-witness 

experts and witness statements. On February 10, 1989, the 

court issued an order compelling defendant to identify its 

non-witness experts and to disclose the witness statements 

taken by Mr. Roos. The court granted a partial protective 

order to defendant by ordering that certain employee earnings 

be disclosed, but keeping the employee identities confidential. While the court ordered that the photographs and 

catalog of safety files be produced, these items had already 

been produced by defendant on December 13, 1989. The court's 

order also restrained defendant from pursuing any further 

discovery until ten days after it had complied with plaintiff's discovery requests, and ordered defendant to pay 

$7,250 in attorney fees and $170 in costs to plaintiff. 

Defendant seeks relief from this order through a writ of 

supervisory control. 

I 

Is issuance of a writ of supervisory control appropriate 

regarding a motion to compel discovery? 

Defendant contends that a writ of supervisory control 

should issue in the present case because the District Court 

has ordered production of privileged material. Defendant 

contends that because it asserted its right to withhold 

privileged work product it is now being prevented from conducting any discovery. It contends that if it is required to 

disclose material which is privileged then "the harm is 

complete and cannot be rectified by appeal." Thus there is 

no adequate remedy. 

A discovery order is interlocutory and normally not 

appealable, and this Court has expressed disfavor in granting 

a writ in the context of a discovery issue. State ex rel. 

Guar. Ins. v. District Court (Mont. 1981), 634 P.2d 648, 38 

St.Rep. 1682. 
However, this Court has issued a writ in two significant 

cases involving discovery issues. In Kuiper v. Dist. Court 

of Eighth Judicial Dist. (Mont 1981), 632 P.2d 694, 38 

St.Rep. 1288, a writ issued to determine whether the District 

Court had properly granted a protective order. Kuiper involved free speech issues and public policy considerations in 

that the plaintiff alleged Goodyear Tire Company had covered 

up a defect in a product. Kuiper also involved issues of 

whether certain material was work product. 

In a second case, Jaap v. District Court of Eighth 

Judicial District (Mont. 1981), 623 P.2d 1389, 38 St.Rep. 

280, this Court granted a writ because the District Court had 

exceeded its jurisdiction by allowing defendant's attorney to 

privately interview plaintiff's physicians. In Jaap the 

method of discovery was incorrect. 

In accepting jurisdiction to resolve a discovery dispute, the court in Nat. Farmers Un. Prop. & Cas. v. Denver 

D.C. (Colo. 1986), 718 P.2d 1044, 1046 stated: 

Initially we note that orders pertaining to discovery are interlocutory in character and generally 

are not reviewable in an original proceeding. 

However, we will exercise our original jurisdiction 

when an order will place a party at a significant 

disadvantage in litigating the merits of the case. 

Regarding the appropriateness of supervisory control, in 

Continental Oil v. Elks Nat. Foundation (Mont. 1989), 767 

P.2d 1324, 1326, 46 St.Rep. 121, 123, this Court stated: 

Supervisory control is proper to control the course 

of litigation when the lower court has made a 

mistake of law or willfully disregarded the law so 

that a gross injustice is done and there is no 

adequate remedy by appeal; also, to prevent extended and needless litigation. (Citation omitted. ) 
The present case involved discovery of potentially 

privileged material. The discoverability of the identity of 

non-witness experts presented an issue of first impression in 

Montana. The sanctions imposed on defendant are severe and 

exceed the authority of Rule 37, as will be discussed further. We conclude that the order would place the defendant 

at a significant disadvantage in litigating the merits of the 

case and therefore accept supervisory control. 

Did the District Court err in ordering disclosure of the 

identity of non-witness experts? 

Plaintiff's first set of interrogatories included the 

following request: 

INTERROGATORY NO. 7: State the names and 

addresses of all experts you have retained or 

conferred with concerning this action or any facts 

or circumstances which are relevant to this action; 

Defendants objected to this interrogatory on the basis 

that it seeks the identity of experts not to be called at 

trial. Defendant contends that this information is not 

discoverable, basing this assertion on Rule 26 (b) (4) (B) , 

M.R.Civ.P., which provides: 

A party may discover facts known or opinions 

held by an expert who has been retained or specially employed by another party in anticipation of 

litigation or preparation for trial and who is not 

expected to be called as a witness at trial, only 

as provided in Rule 35(b) or upon a showing of 

exceptional circumstances under which it is impracticable for the party seeking discovery to obtain 

facts or opinions on the same subject by other 

means. 

Federal Rule 26(b)(4) was adopted in 1970 to standardize 

discovery of expert witnesses. Montana's Rule 26(b) (4) is 
identical to the federal rule. Subdivision (A) deals with 

discovery of experts who will be called to testify at trial. 

Subdivision (B) deals with non-witness experts. Thus the 

rule itself treats the two classes differently. While identity is not mentioned in this rule, the Advisory Comments to 

the rule state: "As an ancillary procedure, a party may on a 

proper showing require the other party to name experts retained or specially employed. . . . " 48 F.R.D. 487, 504. 

Defendant contends that if the identity of experts who 

have been retained but who will not be called to testify at 

trial must be disclosed, then these witnesses could be contacted by the adverse party, and forced to testify. Defendant cites the case of Ager v. Jane C. Stormont Hospital and 

Training, Etc. (10th Cir. 1980), 622 F.2d 496, 503, for the 

holding that the identity of a non-witness expert is discoverable only upon a showing of exceptional circumstances. The 

Ager court also stated that an in-camera inspection is appropriate to initially determine the status of the expert. The 

Ager court based its holding on four policy considerations, 

as follows: 

. . . once the identities of retained or specially 

employed experts are disclosed, the protective 

provisions of the rule concerning facts known or 

opinions held by such experts are subverted. The 

expert may be contacted or his records obtained and 

information normally non-discoverable, under rule 

26 (b) (4) (B) , revealed. Similarly, although perhaps 

rarer, the opponent may attempt to compel an expert 

retained or specially employed by an adverse party 

in anticipation of trial, but whom the adverse 

party does not intend to call, to testify at trial. 

Kaufman v. Edelstein, 539 F.2d 811 (2d Cir. 1976). 

The possibility also exists, although we do not 

suggest it would occur in this case, or that it 

would be proper, that a party may call his opponent 

to the stand and ask if certain experts were retained in anticipation of trial, but not called as 

a witness, thereby leaving with the jury an 
inference that the retaining party is attempting to 

suppress adverse facts or opinions. Finally, we 

agree with Ager's view that " [dl isclosure of the 

identities of [medical] consultative experts would 

inevitably lessen the number of candid opinions 

available as well as the number of consultants 

willing to even discuss a potential medical malpractice claim with counsel . . . " 

Ager, 622 F.2d at 503. 

The Ager court further concluded that ' [tlhe party 

"seeking disclosure under Rule 26(b) (4) (B), carries a heavy 

burden" in demonstrating the existence of exceptional circumstances, ' citing Hoover v. United States Dept. of Interior, 

(5th Cir. 1980), 611 F.2d 1132, 1142 n. 13. 

The holding in Ager accords with the statutory language 

of Rule 26 (b) (4) (B) . In analyzing the recent case of Kuster 

v. Harner (D. Minn. 1986), 109 F.R.D. 372, a case which 

followed the Ager holding, one commentator explained that not 

only the policy reasons enumerated in Ager support 

non-disclosure of identity under this rule, but the language 

of the rule itself indicates that identity is protected. 

Rule 26(b) (4) establishes a general rule and 

then carves out different standards for testifying 

and non-testifying experts. The general rule does 

not expressly address the disclosure of an expert's 

identity. Instead, Rule 26 (b) (4) (A) (i) expressly 

mandates the disclosure of a testimonial expert's 

identity. The fact that the drafters thought it 

necessary to treat the identity of a testimonial 

expert separately may suggest that the identity of 

a non-testimonial expert need not be revealed. It 

seems reasonable to apply this restrictive approach 

not only to the facts and opinions of a 

non-testimonial expert but also to the expert's 

identity because when the Advisory Committee wanted 

an identity to be discovered, they provided for it 

as in Rule 26 (b) (4) (A) (i) . 
M. Tapken, "Kuster v. Harner: A New Interpretation of Federal 

Rule of Civil Procedure 26(b) (4) (R) ," 33 South Dakota L.Rev. 

352 (1988). 

We adopt the holding in Ager because we agree with its 

rationale. There are no significant cases to the contrary, 

and the following cases demonstrate that the Aqer case is the 

current prevailing view on whether the identity of a 

non-witness expert is discoverable. (See, e.g., Detwiler v. 

Gall, Landau and Young Const. Co. (Wash.App. 1986), 712 ~.2d 

316; Kuster; In re Sinking of Barge Ranger I (U.S. D.C. Texas 

1981), 92 F.R.D. 486; In re Pizza Time Theatre Securities 

Litigation (N.D. Ca. 1986), 113 F.R.D. 94). 

We hold that the identity of non-witness experts is 

discoverable under Rule 26 (b) (4) (B) , M.R.Civ.P., only upon a 

showing of exceptional circumstances. In the present case, 

plaintiff made no showing of need for this information. This 

portion of the District Court's order is therefore reversed. 

Did the District Court err in ordering disclosure of 

witness statements taken by the senior claims representative 

of the defendant? 

Within hours after Mr. Gilliland's accident, Mr. Dale 

Roos, the senior claims representative for Burlington Northern, interviewed the two crew members who were operating the 

train which hit Mr. Gilliland. The supervising yardmaster 

was also interviewed. One of the interrogatory questions at 

issue sought discovery of these interviews. 

Defendant contends that this information is "work product" and is privileged, citing Rule 26(b)(3), M.R.Civ.P., 

which states in pertinent part: 

(3) Trial preparation: Materials. 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. 

Defendant contends that these statements were taken by an 

agent of defendant and were taken in anticipation of litigation. Defendant contends that this information may only be 

discovered upon a showing of substantial need, and that the 

substantial equivalent cannot be obtained without undue 

hardship. 

Plaintiff contends that these statements were simply 

statements taken in the regular course of business and are 

discoverable without any showing of need. He refers this 

Court to our holding in Cantrell v. Henderson (1986), 221 

Mont. 201, 718 P.2d 318, in which this Court concluded that a 

statement made by a defendant to his insurance company, 

before suit was filed, was not taken in anticipation of 

litigation and was therefore not privileged. 

We conclude that the holding in Cantrell controls the 

present issue, allowing discovery. The rules of civil procedure are premised upon a policy of liberal and broad discovery. We therefore begin with the premise that these 

statements are generally discoverable. The statements at 

issue were taken in the regular course of the railroad's 

claims department business, just as in Cantrell the disputed 
statement was taken in the regular course of the insurer's 

business. In the present case the contemporaneous statements, taken within 24 hours of the accident, are unique and 

non-duplicable and should be available to both parties. See 

Southern Railway Company v. Lanham (5th Cir. 1968), 403 F.2d 

119; Stout v. Norfolk & W. Ry. Co. (U.S.D.C. Ohio 1981), 90 

F.R.D. 160. The modern trend favors discovery of this type 

of information. For similar analyses, see Langdon v. Champion (Alaska 1988), 752 P.2d 999; Nat. Farmers --- Un. Prop. and 

- Cas.; Henry Enterprises, Inc., v. Smith (Kan. 19791, 592 P.2d 

The analysis of this issue does not end with this initial premise however, because no absolute rule can be formed 

to apply to every case. We agree with the court in Klaiber 

v. Orzel (Ariz. App. 19851, 714 P.2d 830, that a balance must 

be sought which requires appropriate disclosure of facts, 

without allowing a party to build its case on the other 

party's efforts. As the Klaiber court stated: 

Thus, the exercise of the trial court's discretion 

in each case must involve striking a balance between ensuring that counsel for the requesting 

party is not permitted to build his case on the 

work done by his opponents and fostering sufficient 

disclosure to enable the ultimate determination of 

the issues to be based on a full development and 

presentation of the relevant facts. The first 

element requires a consideration of the efforts 

made by counsel to obtain the same or equivalent 

material. The second element requires a consideration of the nature of the material and the purpose 

for which it is sought. 

Klaiber, 714 P.2d at 834. 

In reaching this conclusion, we do emphasize that the 

plaintiff here has worked diligently to develop his case so 

that this statement does not apply in the present case. 
While we begin with the premise that these witness 

statements are taken in the ordinary course of business and 

are discoverable, we recognize that in such statements there 

may very well be portions which are not discoverable because 

they constitute work product and are therefore privileged. 

Rule 26 (b) (3) precludes inquiry into information taken 

"in anticipation of litigation." This standard stems from 

the theory that attorney "work product" is privileged, a 

concept first articulated in Hickman v. Taylor (1947), 329 

U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451. This work product 

doctrine, incorporated into Rule 26(b) (3), gives a qualified 

immunity to materials prepared "in anticipation of litigation," and nearly absolute immunity to the "mental impressions, conclusions, opinions, or legal theories of an 

attorney or other representative of a party to the litigation." Kuiper, 632 P.2d at 701. 

If the present witness statements contain material which 

may be privileged, the burden is on Burlington Northern, the 

party opposing discovery, to make a motion to limit discovery 

and to make a showing that the material sought is privileged. 

If necessary, an in-camera inspection by the court is appropriate to determine whether certain portions of the material 

should be protected. Any material which reflects attorney 

thought processes is clearly not discoverable. As mentioned, 

a showing that information was taken in anticipation of 

litigation gives a qualified immunity. 

We hold that the witness statements were taken in the 

ordinary course of business and are therefore discoverable. 

In the present case defendant has cited to the court no facts 

which would render these statements privileged. We affirm 

the District Court's order of disclosure of these statements. 
Did the District Court err in enjoining defendant from 

any other discovery until it had complied with the court's 

discovery order? 

The hearing on plaintiff's motion to compel discovery 

and for sanctions was held on December 5, 1988. The court 

issued its order on February 10, 1989. After ordering disclosure of the identity of non-witness experts, and disclosure of the witness statements, the District Court enjoined 

defendant from initiating any further discovery until ten 

days after compliance with the order. Plaintiff's motion for 

a protective order and to quash the subpoena duces tecum 

which had been served on him, compelling him to appear for a 

deposition, was granted. The court's order specifically 

ordered that plaintiff's deposition could not be taken until 

ten days after defendant had fully complied with the discovery order. The court then set a trial date for September 

1989. 

Defendant urges that this in junction against discovery 

is both inappropriate and overly severe. Defendant contends 

that it did not refuse to comply with an order since no 

discovery order had been issued. Defendant also contends 

that the sanction is inappropriate because defendant's opposition to the motion to compel was substantially justified. 

In the alternative, defendant urges that the sanction imposed 

was overly severe in relation to the alleged abuses. 

Rule 37, M.R.Civ.P., authorizes sanctions for discovery 

abuses. Both an overview of Rule 37 and a close examination 

of the statutory language aids in our understanding of how 

this rule should be applied. Rule 37 of the Federal Rules of 

Civil Procedure was enacted because the discovery rules are 

not self-executing and the framers recognized the possibilities of abuse. Our Montana Rule 37 is identical to the 

federal rule. Rule 37 was enacted in 1938 and stood 
virtually unchanged until 1970 when it was substantially 

revised. The 1970 amendments were intended to encourage more 

frequent use of sanctions for abuse. Wright, Miller, & Kane, 

Federal Practice and Procedure, 5 2281, p. 756 (1970). 

Rule 37, M.R.Civ.P., is divided into four subsections. 

The distinctions between each section must be recognized in 

analyzing the facts of the present case. Rule 37(a) provides 

that a party may apply for an order compelling discovery. If 

the motion is granted, the court shall award attorney fees 

and costs to the moving party, "unless the opposition to the 

motion was substantially justified." This same rule applies 

to the party opposing the motion if the motion is denied. 

Rule 37(a) (4). 

Rule 37(b) provides for sanctions for failure to comply 

with an order. It is not necessary that the failure be 

willful. It appears that a finding of willfulness is relevant only to the choice of sanction. Societe Internationale 

v. Rogers (1958), 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 

1255. In conjunction, Rules 37(a) and (b) contemplate giving 

the party a second chance to comply with discovery requests 

before awarding sanctions. 

Rule 37(d) authorizes sanctions for 3 specific failures: 

1) failure to attend at one's own deposition, 2) failure to 

serve answers to interrogatories; or 3) failure to serve a 

written response to a request for production. In the event 

of one of these failures, a court may issue sanctions, without first ordering the non-responding party to comply. No 

second chance is contemplated. It is important to note this 

distinction between Rule 37(b) and Rule 37(d). Under section 

(b) no sanctions are available without a previous court 

order; under section (dl no order is necessary, however, 

sanctions are only authorized for the three enumerated 

failures. 
Montana has acknowledged this distinction in former 

cases. See First Bank (N.A.)-Billings v. Heidema (1986), 219 

Mont. 373, 711 P.2d 1384 (affirming judgment in favor of bank 

entered by trial court pursuant to Rules 37 (b) and (d) for 

borrower's willful refusal to attend own deposition, refusal 

to produce documents, and ignoring court orders directing 

compliance) ; Dassori v. Roy Stanley Chevrolet Co. (Mont. 

1986), 728 P.2d 430, 43 St.Rep. 2113, (holding that a motion 

to compel is not required as a condition to sanctions under 

Rule 37(d), and affirming trial court's dismissal of complaint as a sanction for failure to respond to interrogatories; Thibaudeau v. Uglum (1982), 201 Mont. 260, 653 P.2d 

855, (refusing to instruct trial court on remand that it 

should award sanctions, noting that Rule 37(b) requires 

failure to comply with an order and there had been no order). 

In the present case defendant urges that sanctions were 

not appropriate pursuant to Rule 37 (b) because the defendant 

had not failed to comply with an order. We agree with defendant's contention. We further conclude that Rule 37 (d) does 

not authorize sanctions in the present case because defendant 

did not violate one of the express instances in which it may 

apply. Therefore, there was no provision within Rule 37 

authorizing the sanction imposed in the present case. 

Plaintiff contends that the language of Rule 37 need not 

be strictly adhered to in determining the appropriateness of 

the sanction, since the court has inherent power and broad 

discretion in imposing sanctions. We decline to endorse the 

doctrine of a court's inherent power to award sanctions. 

Although some courts still resort to the use of inherent 

powers in assessing sanctions, it is argued that the inherent 

powers doctrine promotes inconsistency and uncertainty, 

creates a "randomly-enforced system," and dilutes the effect 

of Rule 37. See A. Behar, "The Misuse of Inherent Powers 
When Imposing Sanctions for Discovery Abuse: the Exclusivity 

of Rule 37," 9 Cardozo Rev. 1779, (1988). We agree with 

this rationale and conclude that Rule 37 should be the source 

of authority in assessing sanctions for discovery abuse. 

Broad discretion is available to the trial court within the 

statutory language of this rule without reference to an 

inherent power theory. 

Defendant contends that the sanction imposed was too 

severe in relation to the abuse, and we agree. The agent of 

defendant, Mr. Roos, did not bring the photographs of the 

accident site to his deposition on October 12, thus disobeying the subpoena duces tecum which had been issued to him on 

August 30, 1988. These photographs had still not been produced by November 12 at plaintiff's deposition, although they 

had been listed in a request for production on August 30. 

Compounding this lack of responsiveness, the court was obviously incensed over defendant's conduct regarding the disputed photographs at plaintiff's deposition. Our review of the 

record however, reveals that there were no other significant 

discovery abuses by defendant. We note that by October 12, 

1988, only two months after the accident, plaintiff had 

deposed seven of defendant's employees, including the senior 

claim's representative, Mr. Dale Roos, and the employees who 

were working the morning of the accident who gave a statement 

to Mr. Roos. Plaintiff had also received the handwritten 

statements of these crew members. On October 14, 1988, 

defendant sent responses to plaintiff's interrogatories and 

requests for production. Aside from the material to which 

defendant interposed an objection, the answers were responsive. Supplemental responses were later sent to plaintiff. 

Thus within two and a half months from the date of injury, 

plaintiff had obtained most of the requested discovery. 
Plaintiff has not been denied information; in fact, the 

amount of discovery accomplished by plaintiff in a short 

amount of time demonstrates that defendant has been cooperative in discovery. In contrast, nearly a year after the 

accident, plaintiff, the only witness to the accident, still 

has not been deposed by defendant. Prohibiting discovery is 

a severe sanction, compounded in this case by the setting of 

a September 1989 trial date. The record does not reveal any 

egregious conduct by defendant which would warrant the severe 

sanctions imposed in this case. 

Justice Sheehy's dissent suggests the prohibition on 

discovery was authorized as part of a protective order 

pursuant to Rule 26 (c) so that our discussion of Rule 37 is 

not appropriate. We point out that a protective order under 

Rule 26 (c) is authorized to protect a party from annoyance, 

embarrassment, oppression or undue burden or expense. We 

conclude that none of these are present in this case. 

We regret that experienced counsel were not able to 

resolve this issue between themselves through reasonable 

communication. While we understand that attorneys "in the 

pit" may react in an impulsive or instinctive manner, such 

disputes are best resolved between the attorneys. Unfortunately a minor dispute evolved into a significant court issue 

where telephone calls could have resolved the questions. 

The portion of the District Court's order which enjoined 

defendant from any further discovery until ten days after 

compliance with the order is therefore vacated. We also 

vacate the September 1989 trial date and order the court to 

reset a new trial date, allowing both parties adequate time 

to pursue discovery. 
v 

Did the District Court err in requiring defendant to pay 

plaintiff's attorney fees and costs incurred in bringing the 

motion to compel? 

The District Court order of February 10, 1989, ordered 

defendant to pay $7250 in attorney fees and $170 in costs 

which were incurred by plaintiff in bringing the motion to 

compel discovery. 

Defendant argues that expenses may be awarded pursuant 

to Rule 37 (a) (4) unless "the opposition to the motion was 

substantially justified." Defendant contends that its opposition to disclosure of the identity of non-witness experts 

and its opposition to disclosure of the witness statements 

was substantially justified, as demonstrated by the fact that 

these issues were appealed to this Court. Defendant also 

contends that its opposition to disclosure of the earnings of 

certain Burlington Northern employees was substantially 

justified as demonstrated by the fact that the District Court 

granted a partial protective order on this issue, protecting 

the identities of the employees. 

From the record, however, it is clear that defendant's 

non-production of the photographs of the accident site at 

least partially motivated both the motion to compel, and the 

District Court's order. These photographs were clearly 

discoverable and at no point did defendant dispute this. 

However, defendant was dilatory in producing the photographs, 

did not obey the subpoena duces tecum, and was uncooperative 

at plaintiff's deposition by refusing to allow plaintiff to 

view the photos prior to being deposed. It is understandable 

that at this point, plaintiff's counsel decided that a motion 

to compel discovery was necessary, and while defendant did 

not oppose plaintiff's entitlement to these photos, and in 

fact did deliver the photographs on December 13, 1988 prior 
to the court's order, we conclude that the motion to compel 

and the court's order were largely in response to the fact 

that the photographs were not produced in a timely manner. 

Thus we conclude that the expenses were appropriately awarded 

pursuant to Rule 37 (a) (4) . Defendants also contend that this award may not be 

affirmed because an award of expenses under Rule 37(a) (4) can 

only be made after a hearing on the issue, and no hearing was 

held in the present case. 

Rule 37(a) (4) does not require a hearing but merely an 

opportunity for a hearing. The record does not contain a 

request for a hearing before the District Court on the part 

of the defendant. We affirm the award of attorney fees and 

costs. 

We Concur: 

Justices 
Justice L.C. Gulbrandson specially concurring and dissenting. 

I concur with the majority opinion insofar as the first 

four issues are concerned, but I respectfully dissent to the 

affirmation of the award of $7,250 in plaintiff's attorney 

fees, and costs, in bringing the motion to compel discovery. 

It appears that the attorney fees fixed by the District Court 

clearly involved items which the majority has now ruled were 

not discoverable. I would remand the issue attorney fees 

and costs to the District Court for 
Justice R. C. McDonough dissents: 

The facts in this case clearly show a squabble which 

escalated between advocates relative to discovery. Such 

differences are commonplace at the trial court level and are 

disposed of in the discretion of the trial judge. These 

orders are interlocutory and non-appealable by our rules for 

the losing party normally has an adequate remedy on appeal 

from the final judgment. Here, the decisions relative to 

discovery did not dispose of any major aspect of the case 

with any finality, deny any substantive fundamental right 

which would be prejudicial to the defendant, nor are there 

any procedural entanglements. This supervision of the trial 

court is not necessary or proper. 

I would deny the writ. 
Justice John C. Sheehy, dissenting: 

The factual background of this case is one where the 

railroad counsel obstructively frustrated the discovery 

process. District Judge McKittrick, faced with this record 

of implacable belligerence, restrained himself remarkably by 

not finding the objectors in contempt and limiting his order 

to a mere assessment of attorney fees and costs, which this 

Court has no alternative but to sustain. 

The opinion of this Court while not condoning the 

obstinate blocking of discovery in this case, is at some 

pains not to hurt anybody's feelings. The result is a series 

of nonapplicable statements respecting discovery (especially 

about Rule 37) which are not pertinent to this case, and 

which can only be a source of difficulty in future cases when 

problems of discovery arise. 

Identity Of Experts Not To Be Called 

The order of the ~istrict Court on this subject was as 

follows : 

1. The defendant is ordered to respond 

to plaintiff's interrogatory number 7 by 

identifying by name and address those 

experts it has retained and conferred 

with even though it has no intention of 

calling them as witnesses at the time of 

trial. This information is to be in 

addition to that information required by 

Rule 26, M.R.Civ.P., concerning those 

experts whom the defendant intends to 

call as witnesses at the time of trial. 

In ordering the disclosure of these 

names, the court concurs with the reasoning set forth by the United States 

District Court for the District of 

Maryland, in Baki v. - BF Diamond Construction - Co. (1976T, 71 F.R.D. 179. 
The opinion of this Court holds that the identity of 

nonwitness experts is discoverable under Rule 26(b) (4) (B), 

M.R.Civ.P., "only upon showing of exceptional circumstances." 

It further holds that because the plaintiff made no showing 

of need for this information that portion of the District 

Court's order is reversed. 

That was not the reason given by the railroad for 

refusing to make such disclosure. The interrogatories, and 

the responses thereto, are as follows: 

Interrogatory -- No. 7: State the names and 

addresses of all experts you have retained or conferred with concerning this 

action or any facts or circumstances 

which are relevant to this action; and 

(a) state which experts you expect to 

call as an expert witness at trial; 

Answer: Objection must be interposed to 

this interrogatory to the extent that it 

seeks the identity of experts not to be 

called as expert witnesses at trial as 

it seeks information which constitutes 

work product and seeks to invade the 

mental impressions, conclusions, opinions or legal theories of BN1s counsel. 

With regard to expert witnesses who will 

be called to testify, no decision has 

been made as yet as to what such witnesses, if any, will testify for BN. It 

is likely that one or more of plaintiff's treating physician or other 

medical providers will be called. 

Iterrogatory -- No. 8: Identify all persons whom you have consulted as experts 

but do not intend to call at a trial to 

testify by giving their names and addresses and qualifications. 

Answer: See objection posed to interrogatory number 7. 
Not only did the railroad counsel not identify experts 

who will not be called, they also did not name experts they 

intended to call at the time of trial. 

In Detwiler v. Gall, Landau & Young construction Co. 

(Wash. App. 1986), 712 P.2d 316, 319, the court warned counsel about playing games with the identities of expert witnesses. It said: 

Although our decision precludes discovery of the identities of nonwitness 

experts without a showing of exceptional 

circumstances, we caution counsel 

against using CR 26(b) (4) (B) as a tactic 

to delay discovery of an expert witness 

who will be called to testify at trial. 

CR 26 (e) (1) places a duty upon the 

parties to seasonably supplement responses to interrogatories requesting 

information about expert witnesses. 

Exclusion of the expert ' s testimony is 

an appropriate sanction for failure to 

suppfy such supplementary responses 

(cltlng cases). 

The real difficulty with the decision relating to the 

identity of experts not expected to be called for testimony 

is that nothing -- in this record shows that any such experts 

exist. This Court may have been jockeyed into giving an 

advisory opinion on a purely-imagined factual situation. 

Moreover, it is quite possible in this case that the experts 

consulted or retained by the employer are actually employees 

of the corporation who are expert in their field. ~urlington 

Northern may have, and undoubtedly does have, people in its 

employ who are outstanding experts on particular subjects, 

for example the engineering and operation of air brake systems on railroad cars. If such persons exist, plaintiff is 

entitled to discovery as to "the identity and location of 

persons having knowledge of any discoverable matter." Rule 
In this case we should follow the lead of the North 

Carolina Court of Appeals which suggested that with respect 

to such expert witnesses not expected to be called, that the 

court should hold an - in camera review to consider (1) whether 

the expert has information of discoverable matter, (2) how 

the expert acquired the information, and (3) whether the 

party expects to call the expert as a witness. Mack v. 

Moore, et al. (C.A. N.C. 1988), 372 S.E.2d 314. 

It is remarkable that the opinion does not mention in 

any respect the case relied upon by the District Court on 

this subject. ~aki v. BF ~iamond construction Co. (1976), 71 

F.R.D. 179. 

Statements Of Witnesses 

The following is the request for production and response thereto relating to this subject: 

Request for Production No. 14: All 

statements taken from crew members, 

railroad employees, or other witnesses 

and which pertain to the accident in 

which Ed Gilliland was injured at the BN 

railroad yard in Whitefish, Montana, on 

August 4, 1988. 

Response: Objection must be interposed 

as to this request to the extent that it 

seeks material prepared in anticipation 

of litigation, work product, or trial 

material. Subject to said objection, 

see copies of handwritten statements of 

Steve Bruce, Greg Loberg, Russ ~iley and 

~obbie Seward produced in response to 

subpoena duces tecum and attached to the 

deposition of Mr. Ruse. Also see copies 

of statements attached to the deposition 

of Mr. Riley. 

In handling this subject, the ~istrict Court ordered: 

3. Pursuant to the Montana Supreme 

Court's decision in Cantreli - v. 
Henderson, 718 P.2d 318 (Mont. 1986), 

the defendant is ordered to respond to 

plaintiff's request for production no. 

14 by providing the plaintiff's attorney 

a copy of all statements or transcripts 

of all recorded statements taken from 

crew members, railroad employees, or 

other witnesses, and which pertain to 

the accident in which the plaintiff was 

injured at the defendant's railroad yard 

in Whitefish, Montana, on August 4, 

1988. This order is intended to specifically apply to those recorded statements taken from the defendant's crew 

members by Dale Roos, the railroad's 

claims agent, on the morning of August 

4, 1988, shortly after the plaintiff's 

injury occurred. 

There is not any doubt now that plaintiff was entitled 

to these statements upon his request for production, and was 

so entitled at every stage of the proceedings before us. 

That issue has been decided in Cantrell v. Henderson, relied 

on by the ~istrict Court, supra. There should not have been 

a moment's quibble about the right of the plaintiff to have 

those statements when requested. 

Instead of so holding, and ending the matter, the 

plural opinion of this Court goes on gratuitously to talk 

about "allowing a party to build its case on the other party's efforts.'' That subject has no relevance to the production of statements from witnesses taken in the ordinary 

course of business. This Court then goes on to conclude that 

if these witness statements contain material which may be 

privileged there should be some sort of - in camera inspection 

relating to them. That holding, of course, waters down 

considerably the effect of Cantrell v. Henderson, and is 

completely unnecessary to a decision on the subject of the 

witness statements before us here. 
Photographs and the Subpoena Duces Tecum 

The request for photographs and the response was as 

follows : 

Request for production No. 10: All 

photographs taken of the scene where 

plaintiff was injured on August 4, 1988, 

or any of the railroad cars on Track 2 

at the time of plaintiff's injury. 

Response: Defendant will agree to an 

exchange of photographs at a mutually 

agreeable time and place. 

That response, filed in the District Court on October 

14, 1988, was nothing less than a denial of production. The 

production of discoverable photographs cannot be conditioned 

upon a statement of "I will if you will." 

On this subject the ~istrict Court ordered: 

2. The defendant is ordered to respond 

to plaintiff's request for production 

number 10 by having duplicate photographs made of all photographs taken by 

the defendant or any of its agent at the 

scene where plaintiff was injured or of 

any of the railroad cars at the scene of 

plaintiff's injury at the time of his 

injury. These copies should then be 

sent to the office of the plaintiff's 

attorney with a bill for the costs of 

duplication. In the alternative, the 

defendant's attorneys can send the 

negatives to plaintiff's attorney who 

can have duplicate photographs made at 

his own expense and then return the 

negatives to the defendant. 

Under Rule 34 (a) , M.R.civ.P., a party may request the 

production of documents, including photographs. Under Rule 

34 (b) , the request may be made without leave of court. The 

party upon whom the request is made must serve a written 

response within the time allowed under Rule 34 (b) and if the 

request is objected to, "the reasons for objecting shall be 
stated." The foregoing response does not include any reasons 

for objecting to the production of the photographs. 

Thus, it was that on November 10, 1988, when the 

deposition of the plaintiff was scheduled to be taken by the 

defendant, counsel for the plaintiff requested that the 

photographs be presented to the plaintiff before the 

deposition was commenced. Counsel for Burlington Northern 

refused to allow the plaintiff to view the photos before his 

deposition but stated they would be made available during a 

recess or after the deposition had been concluded. This, 

although since October 14, 1988, or earlier, plaintiff was 

absolutely entitled under the rules to the production of the 

photographs for his inspection and copying. 

In fact, in this case, plaintiff was entitled to the 

production of the photographs and of the statements taken of 

the witnesses at a much earlier time. On August 26, 1988, 

plaintiff had procured the issuance of subpoenae to witnesses 

Steve Bruce, Russ Riley and Greg Loberg. Also issued were 

subpoenae duces tecum for Dale Roos, Robbie Seward, John A. 

Sitton, and ~ich Wetsch. In the subpoenae duces tecum, the 

witnesses were required to bring with them to their depositions, among other items, the photographs and the statements 

taken of the witnesses immediately following the injury. 

These were not produced at the time of the depositions, 

although no written objections were filed by the railroad at 

or prior to the time of the taking of the depositions. Some 

of these non-party witnesses were told by counsel that as to 

other statements, they did not have to produce them, and that 

the witnesses could withhold those statements if they wanted 

to. 

The opinion makes no mention of Rule 45, and its affect 

on this case. Rule 45 (dl provides the method of taking the 

deposition of a witness who is not a party to the action. 
The rule specifically allows subpoenae commanding the witness 

to produce and permit inspection and copying of books, papers, documents and tangible things which fall within the 

scope of the examination permitted by Rule 26(b). 

Further, under Rule 45 (d) , if a person objects to the 

production of documents under a subpoena, that objection must 

be made in writing within ten days after the service of the 

subpoena, or at or before the time specified in the subpoena 

for compliance. Only when objection is made in writing is 

the party serving the subpoena not entitled to inspect and 

copy the material unless an order of the court is obtained. 

Rule 45 (f) provides that any person who without adequate 

excuse fails to obey a subpoena duces tecum served upon him 

may be deemed in contempt of court. 

At the depositions of these witnesses, neither the 

statements nor the photographs were produced, despite the 

properly served subpoenae duces tecum. 

We find in Moore's Federal Practice, Vol. 5A pg. 45-20 

this statement: 

A party or witness cannot refuse to obey 

a subpoena that is validly served on him 

on the ground that the documents called 

for are irrelevant or immaterial, or the 

ground of privilege against self-incrimination, or on any other ground, but 

should make a motion to quash within the 

time provided in Rule 45 (b) . 

On this subject, Moore felt it proper to quote the 

language of the late chief ~ustice inc cent in United States 

v. Bryan (1950), 339 U.S. 323, 331, 70 S.Ct. 724, 94 L.Ed. 

884: 

Persons summoned as witnesses by competent authority have certain minimum 

duties and obligations which are necessary concessions to the public interest 

in the orderly operation of legislative 
and judicial machinery. A subpoena has 

never been treated as an invitation to a 

game of hare and hounds, in which the 

witness must testify only if cornered at 

the end of the chase. If that were the 

case, then, indeed, the great power of 

testimonial compulsion, so necessary to 

the effective functioning of courts and 

legislatures, would be a nullity. We 

have often iterated the importance of 

this public duty, which every person 

within the jurisdiction of the Government is bound to perform when properly 

sumrnoned . 

Plaintiff in this case was proceeding properly under 

Rule 45 in obtaining discovery and production of documents 

from a person not a party. Rule 34 deals with the discovery 

or production of items from a party. Rule 45(b) provides for 

a subpoena duces tecum to any person, whether or not a party, 

to produce documents, papers, or other enumerated items at 

the taking of a deposition or at a hearing or trial. 

The record here is clear that the railroad not only 

contumaciously refused to produce documents after a proper 

request for production under Rule 34; it earlier allowed its 

witness employees to risk contempt of court in failing to 

produce those pertinent documents when their depositions were 

taken after the service upon them of a subpoena duces tecum. 

Severity of Sanctions 

I particularly disagree with the portion of the opinion 

which recites that "the record does not reveal any egregious 

conduct by defendant which would warrant the severe sanctions 

imposed in this case." 

Apart from failing to produce the photographs in a 

timely manner, the opinion states "our review of the record, 

however, reveals that there were no other significant discovery abuses by defendant." The opinion then goes on to excuse 
the tactics of the defendant on the grounds that "most of the 

requested discovery" had been supplied. 

The defendant here had refused to produce statements to 

which the plaintiff was clearly entitled under Cantrell v. 

Henderson (Mont. 1986), 718 P.2d 318; had withheld the photographs subject to a subpoena duces tecum, at a nonparty's 

deposition, and refused to produce them at the plaintiff's 

deposition; and had told nonparty witnesses that they did not 

have to produce their personal statements if they did not 

want to. If these actions do not amount to egregious conduct, then this Court has raised the threshhold of egregious 

conduct so high that no recalcitrant can overstep it. 

The purported "sanction" reversed by the opinion is not 

a sanction at all but rather a response to a motion for a 

protective order granted by the ~istrict Court. 

On November 11, 1988, the plaintiff moved the court for 

its order compelling the defendant to produce the evidence 

that had been withheld. At the defendant's request, a hearing on that motion was not scheduled until December 5, 1988. 

On November 11, 1988, the plaintiff also moved the court for 

a protective order enjoining the defendant from conducting 

any further discovery in the case until ten days after it had 

responded to plaintiff's request for discovery by producing 

the information and documents that were being withheld. 

Following the motion for a protective order by the 

plaintiff, the defendant issued a notice of deposition on 

November 28, 1988, that the deposition of the plaintiff would 

be taken in Kalispell on Wednesday, December 7, 1988. 

On November 21, 1988, the District Court issued its 

order to show cause to Dale Roos, a nonparty witness, and to 

Charles Dearden and James Robischon, the defendant's counsel, 

to appear and show cause on December 5, 1988, why each of 

them should not individually be held in contempt for 
intentional disregard of a lawful subpoena. (The ~istrict 

Court has yet to rule on this show-cause order.) 

In response, on December 2, 1988, the defendant filed 

in the District Court a motion to dismiss plaintiff's complaint, or in the alternative, to order discovery, requiring 

the plaintiff to answer interrogatories and requests for 

production. In that motion the defendant ~urlinqton Northern 

moved the court "to make an order requiring plaintiff to 

respond to discovery before he undertakes any other discovery 

and such other orders that the court may deem just." (The 

same protective order this Court finds "severe.") 

At the December 5, 1988 hearing before the District 

Court, the court ruled from the bench on most of the plaintiff's motions relating to discovery. The court took two 

issues under advisement and requested additional briefing. 

One of the issues was the identification of nontestifying 

expert witnesses. 

After the December 5 hearing, when it was clear what 

the court's ruling on photographs was going to be, the defendant mailed, on December 13, 1988, the photographs to the 

plaintiff's attorney. 

On February 10, 1989, the court issued its written 

order in this cause. In three separate paragraphs in the 

order, the ~istrict Court ordered the defendant to produce a 

catalogue of safety or instructional films or brochures to 

the plaintiff, to produce the photographs, and to produce the 

statements taken from the witnesses immediately following the 

accident by the agent of Burlington Northern. The court went 

on to make two further orders that it deemed necessary in the 

premises : 

IT IS FURTHER ORDERED that due to the 

defendant's failure to provide the 

aforementioned information and evidence 
prior to being ordered to do so, the 

following relief is granted: 

1. In the event that the statements 

from Greg Loberg, Robbie Seward and 

Steve Bruce suggest areas of examination 

which could have been covered during 

their previous depositions if their 

statements had been produced when requested, plaintiff may re-depose those 

witnesses. 

2. The defendant is enjoined from 

conducting any further discovery in this 

case until at least ten days after it 

has complied with this order by responding to the aforementioned interrogatorles and producing those items it has 

been ordered to produce. 

Thus, the District Court, in the face of a clear record 

of obstruction on the part of the railroad, responded to the 

motion for a protective order and entered the requirement of 

a ten-day compliance before further discovery could be had by 

the defendant. The effect of the opinion is to remove this 

protective order and force the plaintiff to a deposition in 

spite of the power of the District Court to control the 

sequence and timing of discovery. Rule 26(d), M.R.civ.P. 

Thus, the discussion in the opinion regarding Rule 37 

and the applicable sanctions in it has no relevance here. 

This was a protective order, issued by the ~istrict Court 

under Rule 26(c), M.R.civ.P., which provides: 

Protective orders. 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 or the district 

court where the deposition is to be 

taken, may make any order which justice 

requires to protect a party or person 

from annoyance, embarrassment, oppres- 
- sion, - or undue burden or expense, in-- 

cluding one or more ofthe following: 

(1) that the discovery not be had; 

(2) that the discovery may be had only 

on specified terms and conditions, 

including a designation of the time or 

place; 

(3) that the discovery may be had only 

by a method of discovery other than that. 

selected by the party seeking discovery; . . . (Emphasis supplied.) 

The protective order issued by the ~istrict Court was 

clearly well within its power, and should be upheld by this 

Court. 

 ina ally, it should be noted that the so-called "sanction" is one completely within the power of the defendant 

Burlington Northern to remove. All Burlington Northern had 

to do was to comply with a just order of the District Court 

and the limitation would be removed. If this "sanction" 

constituted punishment, it is punishment which the defendant 

has willingly embraced. 

I agree that the plaintiff here is entitled to the 

attorney fees and costs as fixed by the District Court; 

otherwise I disagree with the rationale and approach of the 

opinion in this cause. 

After this dissent was first proposed, there was 

inserted in the opinion the language that Rule 26(c) (the 

protective order) does not apply because there has been no 

annoyance, embarrassment, oppression, or undue burden or 

expense under the Rule. That gratuitous conclusion is 

completely unsupported in the record. The District Court has 

ruled that plaintiff has been put to undue burden and expense 

in excess of $7,000. The oppressive obstinancy of the 

railroad to refuse discovery in this case fits every category 
of the preconditions in Rule 26 (c) for a protective order. 

Moreover, the gratuitous conclusion ignores the power of the 

district court, in the interests of justice, to control the 

timing and sequence of discovery under Rule 26(d). It should 

be clear to all that a district court has a broad discretion 

to control discovery so as to make the rules of discovery 

work properly, and that is what the District Court strove to 

do in this case. This opinion in itself frustrates that 

process. 

On August 28, 1989, while this case was still pending 

in this Court, and before the opinion was in final form, a 

majority of Justices, without a Court conference on the 

subject, entered an order vacating the trial date of this 

cause that had been set by the District Court. The result 

was that the plaintiff, whose income from employment stopped 

on the date of his injury, faces a further delay before he 

can arrange a trial date in the District Court. In his 

desperation, the plaintiff filed a motion in this Court on 

September 5, 1989, offering to waive his right to all 

discovery and expenses if we would simply dismiss the 

application. From that viewpoint Justice McDonough is 

correct in his dissent. We have not serviced justice or the 

parties by the holding in this case. 

/ ' 

I concur in the dissents of Mr.'-Justice R. C. McDonough 

and Mr. Justice John C. Sheehy. I