STATE of Arizona ex rel. William E. WILLEY, State Highway Engineer, Appellant,
Emma B. WHITMAN, widow of Le Roy Whitman, deceased; the known and unknown heirs of Le Roy Whitman, deceased, Appellees.
[91 Ariz. 121] Robert W. Pickrell, Atty. Gen., John T. Amey, Asst. Atty. Gen., Wade Church, former Atty. Gen., Lawrence P. D'Antonio, Sp. Asst. Atty. Gen., Jay Dushoff, Asst. Atty. Gen., Phoenix, for appellant.
Dunseath, Stubbs, Morse & Burch, Tucson, for appellees.
PORTER MURRY, Judge.
The State of Arizona on November 4, 1959, commenced an action in the Superior Court of Pima County against Emma B. [91 Ariz. 122] Whitman, widow of Le Roy Whitman, and the known and unknown heirs of deceased. The action was brought to condemn for highway purposes a portion of a tract of land owned by defendants. On April 7, 1960, the State submitted a set of twelve interrogatories under Rule 33 of the Arizona Rules of Civil Procedure, 16 A.R.S., to be answered by defendants. Defendants objected to the interrogatories on the ground that they sought the work product of their attorney and the objection was sustained by the court.
A jury trial followed and on June 7, 1960, judgment was entered by the court in accordance with the jury's verdict. The sum of $14,000 plus 6 per cent interest was to be paid defendants in return for which title to the parcel of land in question was to vest in the State. The State appealed from the judgment, assigning as the sole error the order of the trial court sustaining defendants' objections to the interrogatories. The State contends that all of the information it sought was subject to pretrial discovery under Rules 33 and 26(b) of the Rules of Civil Procedure.
It will not be necessary to determine the correctness of the lower court's ruling as to each of the twelve interrogatories. The plaintiff and defendants have treated them in groups. The first group, comprising interrogatories 1 through 6, will be considered under 'Proposition of Law I' as labeled by the State, which raises this question: Are facts gathered by an adverse party's prospective expert witness, and his opinion based thereon, subject to pre-trial discovery pursuant to the Rules of Civil Procedure?
The State concedes that there are many cases supporting appellees' position that facts and opinions of an adverse party's expert witness are not subject to pre-trial discovery.  Most of these cases are based, in part at least, on the reasoning laid down in the cases of Boynton v. R. J. Reynolds Tobacco Co., D.C., 36 F.Supp. 593; and Lewis v. United Airlines Transportation Corp., D.C., 32 F.Supp. 21. The Lewis case answers the question above posed in the negative by saying:
'To permit a party by deposition to examine an expert of the opposite party before trial, to whom the latter has obligated himself to pay a considerable sum of money, would be equivalent to taking another's property without making any compensation therefor. To permit parties to examine the expert [91 Ariz. 123] witnesses of the other party in land condemnation and patent actions, where the evidence nearly all comes from expert witnesses, would cause confusion and probably would violate that provision of Rule 1 which provides that the rules 'shall be construed to secure the just, speedy, and inexpensive determination of every action.'' 32 F.Supp. 21, 23.
While the Boynton case supports appellees' position, the court indicated that the expert should be or may be compelled to express his opinion without being tendered and expert fee.
'Although there are authorities which seem to indicate that the court has no power to compel an expert witness to express an opinion already formed, it seems to me the better rule, and the one sustained by the weight of authority, that while the court has no power to compel the witness to educate himself, the court does have the power to compel him to state an opinion already formed.' 36 F.Supp. 593, 594.
The Lewis and the Boynton cases were decided in 1940 and 1941 respectively, soon after the so-called 'New Federal Rules of Civil Procedure' were adopted, and where condemnation cases are concerned the opinions are mere dicta for the Rules were not made applicable to condemnation proceedings until August 1, 1951, under Federal Rules of Civil Procedure 71A and 81, 28 U.S.C.A. Hickey v. United States, D.C., 18 F.R.D. 88.
In Cold Metal Process Co. v. Aluminum Co. of America, 7 F.R.D. 425, the district court held that the expert witness could be deposed, saying: 'The witness must either show that the testimony sought is privileged or he must answer the question.' To the contention of plaintiff that questions came within the protection of 'work product of the lawyers' the court said that 'where 'necessity' or 'justification' are shown, 'discovery may properly be had." The court seemed to say that if a case were being tried and the moving party had the right to call the witness and ask him the like questions then they could be asked at the taking of a deposition. The court quoted Justice Jackson in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, wherein he said: 'It seems clear and long has been recognized that discovery should provide a party access to anything that is evidence in his case.'
The Sixth Circuit in Sachs v. Aluminum Co. of America, 167 F.2d 570 (6th Cir. 1948) affirmed Cold Metal Process Co. v. Aluminum Co. of America, supra, and said: 'The primary concern of courts of justice is to elicit truth essential to correct adjudication.' This case was specifically followed in Leding v. United States Rubber Co., D.C., 23 F.R.D. 220.
[91 Ariz. 124] In Rowe Spacarb, Inc. v. Cole Products Corp., D.C., 21 F.R.D. 311, objections to interrogatories were made on the ground that they called for information within the knowledge of the plaintiff. The expert testimony and opinions sought information equally available to plaintiff. The court held that where the interrogatories: a) imposed no undue burden on the defendant, and b) will clearly serve one of the basic purposes of pre-trial discovery procedure to wit: narrow the issues, ...