Tandy & Allen Construction Co. v. Peerless Casualty Co.

CASHIN, District Judge. This is a motion by plaintiff, under Rule 34 of the Federal Rules of Civil Procedure, 28 U.S.C.A., for the production of documents. Plaintiff, a general contractor, sues a surety company for its expenses in completing the work of a defaulting subcontractor. Defendant has agreed to the production of the documents covered by paragraph 3 of the motion. Plaintiff has withdrawn the motion as to the remainder of the documents demanded, except a statement obtained by defendant’s attorney from a Mr. Wilson, president of the subcontractor. For the “good cause” required by Rule 34 to exist, an adverse party seeking the production of statements obtained by an attorney from a prospective witness in anticipation of or preparation for suit, must show at least that the information sought is unavailable through other means. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451; 4 Moore’s Fed.Practice 1131 et seq. Here the information is available to plaintiff by oral examination of Miller. That Miller resides in Rochester, New York, and that he is likely to be hostile do indicate that plaintiff’s task will not be simple, but do not make the work product of defendant’s attorney available. Of course, if plaintiff, after diligent efforts, has been unsuccessful, he is not precluded hereby from seeking production at a later date. Motion disposed of as indicated above. Settle order on notice.