NO. 80-409 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

JULIE JAAP , 

Relator, 

THE DISTRICT COURT OF THE 

EIGHTH JUDICIAL DISTRICT 

OF THE STATE OF MONTANA, IN 

AND FOR THE COUNTY OF CASCADE et al., 

Respondent. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Relator: 

Hoyt and Trieweiler, Whitefish, Montana 

Terry Trieweiler argued, Whitefish, Montana 

For Respondent: 

Smith, Baillie and Walsh, Great Falls, Montana 

h argued, Great Falls, Montana Bdu 

Submitted: January 19, 1981 

Decided: FEB 2 4 19a 

Filed: RB 2 4 1981 

*,$ 

Clerk ' 
Mr. Justice John C. Sheehy delivered the Opinion of the Court. 

Julie Jaap applies to this Court for a writ of supervisory control directed to the District Court, Eighth 

Judicial District, Cascade County, Montana, for the purpose 

of reversing a discovery order entered by the District Court 

on October 15, 1980. We accept jurisdiction of the application, 

and after receipt of briefs and oral argument, we find merit 

in the application and order supervisory control. 

Julie Jaap has brought suit in the Cascade County District 

Court against defendant William Reeves, seeking damages alleged to 

have 

/arisen out of an automobile accident. She claims personal 

injuries to her neck, lower back and lower extremities, and 

damages for medical expenses incurred, including examinations 

and treatments by eight physicians and physical therapists. 

Counsel for Reeves moved the District Court to permit 

defense counsel to hold private conferences with all of the 

medical persons who have examined Julie Jaap with regard to 

her alleged injuries. After considering argument from both 

parties on the motion, the District Court entered the following 

order: 

"NOW, THEREFORE, IT IS HEREBY ORDERED 

that the [relator] on February 6, 1980, 

upon filing her complaint seeking damages 

for personal injuries resulting from an 

automobile accident occurring on March 15, 

1979, has waived thereby the physician-patient 

privilege between the [relator] and any 

physician treating the [relator] for injuries 

resulting from said accident. That upon a 

waiver of the physician-patient privilege, 

all physicians treating the [relator] for 

the injuries alleged by the [relator] to have 

resulted from said accident are thereafter to 

be considered as any other witness who 

might have knowledge or information which 

might be relevant to above captioned matter." 

On its face, the District Court order is inoffensive. 

However, all parties acknowledge that the intent of the 

District Court was to permit private interviews between 
defense counsel and Julie Jaap's physicians and therapists. 

This is confirmed by the order of the District Court which 

stayed the discovery order pending application for supervisory control to this Court. The District Court order 

provided : 

"IT IS ORDERED that the implementation of 

the court's order . . . permitting the 

defendant to interview the [relator's] 

physicians outside the presence of the 

[relator's] attorney be stayed . . . pending 

[relator's] efforts to petition [for a writ 

of supervisory control] . . ." (Material in 

brackets supplied.) 

Rule 35, M.R.Civ.P., relating to the physical and 

mental examination of persons, is different from its federal 

counterpart (Rule 35, Fed.R.Civ.P.) in that in Montana, Rule 

35 (b) (2) , was amended in 1972 to read as follows: 

"Waiver of privilege. Either by (1) requesting 

and obtainins a report of the examination 

ordered as p;ovided herein, or by taking the 

deposition of the examiner, or by (2) commencing 

an action or asserting a defense which places 

in issue the mental or physical condition of 

a party to the action, the party examined or 

the party to the action waives any privilege he 

may have in that action or any other action involving 

the same controversy, regarding the testimony of 

every person who has treated, prescribed, consulted, 

or examined or may thereafter treat, consult, 

prescribe or examine, such party in respect to the 

same mental or physical condition; but such waiver 

shall not apply to any treatment, consultation, 

prescription or examination for any mental or physical 

condition not related to the pending action. Upon 

motion seasonally made, and upon notice and for good 

cause shown, the court in which the action is pending, 

may make an order prohibiting the introduction in 

evidence of any such portion of the medical 

record of any person as may not be relevant to 

the issues in the pending action." 

There is no question but that under Rule 35(b) (21, 

M.R.Civ.P., as the same is promulgated in Montana, Julie 

Jaap, by commencing an action for damages for her personal 

injuries which placed in issue the mental and physical 

condition arising from the accident, waived any physicianpatient privilege as to her mental or physical condition in 
controversy. Accepting as a premise that the physicianpatient privilege has been waived, may the District Court, 

by way of discovery, order that defense counsel may engage 

in informal, private interviews with the physicians treating 

Julie Jaap for her alleged injuries? 

Put another way, granting that plaintiff has waived any 

physician-patient privilege relating to her mental and 

physical condition in controversy, what limits, if any, 

circumscribe the power of the District Court in authorizing 

and enforcing discovery under the Montana Rules of Civil 

Procedure? 

Although we agree with that portion of the District 

Court order which stated that once the physician-patient 

privilege has been waived, the physician is to be considered 

as any other witness, we conclude that the District Court 

does not have power, under the rules of discovery, to order 

private interviews between counsel for one party and possible 

adversary witnesses, expert or not, on the other. We derive 

this conclusion from an examination of' the Rules of Civil 

Procedure relating to discovery. 

The methods by which discovery may be obtained, under 

the Montana Rules of Civil Procedure, are set out in Rule 

26 (a) . That subsection provides: 

"Discovery methods. Parties may obtain discovery 

by one or more of the following methods: depsitions upon oral examination or written 

questions; written interrogatories; production 

of documents or things or permission 

to enter upon land or other property, 

for inspection and other purposes; 

physical and mental examinations; and 

requests for admission. Unless the 

court orders otherwise under subdivision 

(c) of this rule, the frequency of use 

of these methods is not limited." 
Obviously a private interview of an adversary witness 

is not one of the "methods" of discovery for which the 

Rules of Civil Procedure provide. 

The remainder of the Montana Rules of Civil Procedure 

relating to discovery (Rules 26-37, inclusive) are obviously 

designed to enhance and enforce the "methods" of discovery 

outlined in Rule 26(a). Especially important in the Rules 

are the protective provisions which in effect provide for a 

record upon which a District Court may issue protective 

orders, provide for mental and physical examinations of 

plaintiffs claiming injuries, and establish sanctions, if 

discovery is refused or hampered, or if a discoverer goes 

too far in the proposed discovery. See Rule 26(c), Rule 

30(d), Rule 30(g), Rule 33(b), and Rule 37, M.R.Civ.P. 

The special utility of Rule 37, where a litigant is 

following one of the methods of discovery outlined in Rule 

26(a), is especially to be noted. If, for example, an examining 

physician refuses to answer a question on the ground of 

privilege raised by a party, application may be made to the 

court for an order compelling answers. Under Rule 37(a)(4), 

if the motion is granted, the court has the power to require 

the deponent or the attorney responsible to pay the moving 

party the reasonable expenses incurred in obtaining the order, 

including attorney fees. On the other hand, if the motion is 

denied, the court has the same power to require the moving 

party or the attorney advising the motion or both of them to 

pay the other party the reasonable expenses incurred and 

attorney fees. Professor Moore points out: 

"The effect of this language in most 

cases should be that the examining 

party and his attorney will respect 

objections of privilege which have a 

substantial justification and that the 
deponent and his attorney will not interpose objections of privilege which do not 

have a substantial justification." 4 Moore's 

Federal Practice at 26-250, 5 26.60[5], 

Privileged Matter. 

It is obvious, that if a method of discovery such as a 

private interview is ordered by the court, the sanctions and 

protections which are available under the Montana Rules of 

Civil Procedure for ordinary methods of discovery become 

unavailable for private interviews. 

We conclude therefore, that a District Court, in 

allowing and enforcing discovery in litigation before it, 

must relate the discovery to one of the methods provided in 

Rule 26(a), M.R.Civ.P. Any attempt to enforce a method of 

discovery not provided by the Montana Rules of Civil Procedure 

is outside the power of the District Court. We hold that the 

Court is without power to order a private interview. To do 

so would defeat open disclosure, a prime objective of the 

Rules of Discovery. 

This is not to say that we disapprove of the practice 

of agreements between counsel for interviews or other discovery to save time and expense. In fact, we encourage such 

agreements. In this case, plaintiff's counsel offered to 

allow defense interviews of the plaintiff's physicians, on 

condition that the plaintiff be present when the interviews 

occurred. Counsel for the defendant disdained this offer, 

relying on the District Court's order for private interviews. 

Rule 35 (b) (3) , , M. R. Civ. P. , contemplates examinations made 

by the agreement of the parties but obviously, when the Rule 

provides for an "agreement", it means a procedure to which 

both parties consent. If the parties cannot agree on a 

method of discovery, then resort to the District Court for 

orders compelling discovery must relate to the methods of 
discovery provided in Rule 26(a) for which protections and 

sanctions are set out. 

We choose not to follow the rule established in Alaska 

which has a similar provision to our Rule 35. Arctic Motor 

Freight, Inc. v. Stover (Alaska 1977), 571 P.2d 1006; TransWorld Investments v. Drobny (Alaska 1976) , 554 P. 2d 1148. 

Moreover, anything contained in Callahan v. Burton (19711, 

157 Mont. 513, 487 P.2d 515, in conflict with what is said 

herein is specifically overruled. 

The application for writ of supervisory control is 

granted. The order of the District Court, to the extent 

that it permits private interviews of relator's physicians 

is vacated. A copy of this opinion shall serve the office 

of a formal writ of supervisory control and service by the 

Clerk of this Court by mail upon court and counsel shall 

constitute sufficient service thereof. 

- '/ 

Justice 

We Concur: 

/ i JUS tices