Wood, J.c.c. (temporarily assigned).
There is before this court a motion by plaintiff to compel defendant to answer (among others) the following interrogatory:
"Set forth copies of all statements made by any and all persons in connection with a certain accident involving the plaintiff which
occurred on November 12, 1958, at defendant corporation's railroad and freight yard and public and private parking area at Sterling Place and Murray Street, Elizabeth, New Jersey."
Defendant contends that the interrogatory calls for statements that are privileged under R.R. 4:16-2 since the statements were made "in anticipation of litigation." In other words, defendant argues that the statements are covered by the so-called "work product" doctrine.
The above rule provides in pertinent part:
"* * * The deponent shall not be required to produce or submit for inspection any writing obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent in anticipation of litigation and in preparation for trial unless the court otherwise orders on the ground that a denial of production or inspection will result in an injustice or undue hardship; nor shall the deponent be required to produce or submit for inspection any part of a writing which reflects an attorney's mental impressions, conclusions, opinions, or legal theories, or, except as provided in Rule 4:25-2, the conclusions of an expert. * * *"
The facts, briefly stated, are as follows: On November 12, 1958 plaintiff was found lying beside the tracks of defendant's railroad yard in Elizabeth with both legs severed. Plaintiff claims that he was knocked unconscious by a guard or policeman of the defendant and that, while in a state of unconsciousness or shock, he either staggered or was thrown upon the tracks and was run over by one of defendant's trains. There were no known witnesses to the accident other than, possibly, the crew of the train. In any event, the crew were the first to arrive at the scene. On the following day they made reports or statements to defendant concerning the accident. The quoted interrogatory seeks copies of those reports or statements.
Although the language of the interrogatory is broad enough to include statements made by anybody, including members of defendant's legal staff, the parties apparently treated the interrogatory as calling for only statements made by members of the crew. This court will consider it, for the purpose of this ruling, as calling for only statements or reports of the
train crew and of anyone else who was present at the scene and/or who has or claims to have knowledge of the circumstances pertaining to the happening of the accident. Specifically excluded from this ruling, of course, are opinions of experts, and conclusions, impressions and legal theories of counsel.
Defendant, in its memorandum of law, asserts that the statements or reports were made "under the direction" of its general attorney and that they were, therefore, made in anticipation of litigation. The affidavit of the general attorney filed in support of that ...