Convery, J.c.c. (temporarily assigned).
This is an action brought by William McNeff and his co-worker John J. Torppey against defendant Jos. L. Muscarelle, Inc. (Muscarelle) and others, involving a construction accident which occurred on July 2, 1962, on which date the respective plaintiffs were working on a steel beam which collapsed and resulted in personal injuries to both of them. They were taken forthwith to a hospital and subsequently received treatment over a long period of time.
Suit was instituted against the general contractor and others alleging negligence in the manner of the design and supervision of the said construction work as well as the furnishing of improper materials.
Defendant Muscarelle has admitted in an answer to an interrogatory propounded by coplaintiff John J. Torppey, that certain photographs were taken of the scene of the accident on July 2 or July 3, 1962.
Muscarelle on the date of the alleged accident immediately contacted its liability insurance carrier, which undertook to investigate the accident. Photographs were taken by a third person, paid for by Muscarelle and forwarded immediately and directly by it to its insurance carrier, who, in turn, forwarded same to counsel for Muscarelle.
Depositions have been taken of the employees of Muscarelle as well as plaintiff's co-workers. It appears that following the collapse of the steel beam it was noted that one anchor
bolt was broken and another anchor bolt was bent. There is conflicting testimony as to the exact location of the anchor bolt and the description of the scene of the accident. A reading of the deposition of Paul Zelazny, who was the on-the-jobsite supervisor for Muscarelle, indicates that he was unable to recall all the events that took place at the scene of the accident when he testified on March 12, 1965, approximately three years after the accident. Zelazny said that he kept a daily report concerning the progress of the work involved at the construction site but he was unable to locate it.
Plaintiff accordingly moved pursuant to R.R. 4:24-1, in the interests of justice, for an order to compel the production of the aforesaid photographs and to obtain copies thereof. Defendant opposes the motion on three grounds: (1) under R.R. 4:24-1 the information is privileged as work product; (2) plaintiff has failed to show good cause under R.R. 4:24-1, and (3) plaintiff fails to show proof of undue hardship and injustice, as required under the provisions of R.R. 4:16-2.
"Upon motion of any party showing good cause therefor and upon notice to all other parties, and subject to the provisions of Rule 4:20-2, the court may (a) order any party to produce and permit the moving party, or someone acting on his behalf, to inspect and copy or photograph any designated books, papers, documents, or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 4:16-2 and which are in his possession, custody, or control; * * *."
Plaintiff has satisfied the requirements of the rule requiring the "showing of good cause," by reason of the affidavit filed in support of the motion to produce indicating the factual background ...