[84 Ariz. 107] Walter Linton, Charles N. Ronan and Nathan Holt, phoenix, for petitioner.
Fennemore, Craig, Allen & McClennen, Philip E von Ammon and John J. O'Connor III, Phoenix, for respondent.
Snell & Wilmer, James H O'Connor, Stockton & Karam, Jennings, Strouss, Salmon & Trask and Nicholas Udall, Moore & Romley, and John H. Killingsworth, Phoenix, amici curiae.
The petitioner, Robert Ernest Dean, seeks a writ of prohibition to restrain the respondent court and the Honorable Charles C. Bernstein, one of the judges thereof, from enforcing an order for inspection under Rule 34, Rules of Civil Procedure, 16 A.R.S. The order was made in an action in which Charles B. Buck, a minor, seeks to recover demages from the petitioner for injuries sustained in an automobile accident while a guest in petitioner's automobile.
After a hearing on the motion the respondent court issued the following order requiring the petitioner to produce for inspection and copying all of the following documents:
'1. All written statements in the possession, custody or control of the defendant from every person who was or claims to have been a witness with respect to any matters material to the issues raised by the pleadings in this cause.
'2. All memoranda in the possession, custody or control of the defendant purporting to set forth the substance of any oral statements of every person who was or claims to have been a witness with respect to any matters material to the issues raised by the pleadings in this cause.
'3. Medical reports, X-rays, hospital records or other decuments in the possession, custody or control of the defendant relating to the injuries to or [84 Ariz. 108] physical condition of the plaintiff Charles B. Buck.
'4. All other documents, letters, photographs, maps, drawings or sketches in the possession, custody or control of the defendant material to the issues raised by the pleadings in this cause.'
After oral argument we issued the alternative writ of prohibition restraining the respondent court from further proceedings.
Rule 34 requires the movant to show good cause for ordering the production of documents. In order to comply with Rule 34 plaintiff's counsel submitted an affidavit wherein he stated:
'That as alleged in the complaint of said cause, the plaintiff was injured while riding as a passenger in an automobile driven by defendant; that he was at the time of the accident on active duty in the United States Navy and absent on leave from his regular duty station; that immediately following the accident he was hospitalized in a United States Air Force Base Hospital and from there transferred to a naval hospital out of the state of Arizona; that by virtue of the disabling injuries, the immediate hospitalization and the fact that he was a stranger in the state
of Arizona, and particularly at the place where the accident occurred, he has been unable to make an adequate investigation of the accident or to obtain information and statements from such persons as may have knowledge of the facts surrounding the accident; that in view of the facts and circumstances hereinabove set forth, plaintiff cannot safely proceed to the trial of this action without having an opportunity to inspect and copy such statements, memoranda of oral statements and other documents as may be in the possession, custody or control of the defendant relative to the issues raised by the pleadings in this cause. This affidavit is made upon information and belief.'
The order of the trial court to produce certain documents for inspection and copy presents for our consideration a construction of Rule 34 in many of its aspects. Prior to Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, according to Moore's Federal Practice, Vol. 4, 2d Ed., § 26.23(4), the federal courts in more than sixty cases considered the scope of discovery under the Federal Rules. Since then there have been innumerable decisions in both state and federal courts. The amici curiae urge, in the interest of the administration of justice and for the purpose of giving guidance to the legal profession and the bench of our state, that we fully consider and construe the various aspects involved in the order to produce pursuant to Rule 34.
[84 Ariz. ...