Plaintiff may comply with this interrogatory by providing to GM a list identifying each document that would be responsive to interrogatory 23. To the extent GM claims that it does not have copies of particular materials identified on the list, plaintiff shall produce such documents and allow defendants to copy them at GM's expense.
There remains the issue of the timing of disclosure. GM wants the documents produced immediately. Plaintiff argues that if disclosure is required, such disclosure should not occur until after depositions have been completed. This Court has the discretion, under Rule 26 (c)(2), to delay production of the prior statements of a witness until after the witness has been deposed. The justification for any delay is that pre-deposition disclosure may afford the witness an unfair opportunity to tailor deposition testimony to conform with a previous explanation or statement, thus depriving the plaintiff from obtaining an unrefreshed recollection of the subject matter of the deposition. See Torres-Paulett v. Tradition Mariner, Inc., 157 F.R.D. 487, 488-489 (D. Colo. 1994); McCoy v. General Motors Corp., 33 F.R.D. 354, 356 (W.D. Pa. 1963). Under the facts presented here, I choose to exercise my discretion and delay disclosure of the documents until after the author of the statement or document has been deposed. Accordingly, to the extent plaintiff has either noticed the deposition, or has a good faith intention of noticing the deposition of an individual whose statement would otherwise be producible in answering defendants' interrogatory 23, such statement shall be produced or identified with particularity immediately following such individual's deposition. All other statements of defendants encompassed by a complete response to interrogatory 23 shall be identified or produced by plaintiff within 30 days.
ACCESS TO CRASH OR SLED TESTING
In their moving papers, plaintiff seeks "access to any crash and sled testing that GM intends to perform in this case pursuant to Federal Rule of Civil Procedure 26(b)(3)". (Affidavit of Thomas R. Monks, sworn to on September 20, 1995 at P 29). In citing Rule 26(b)(3), plaintiff apparently concedes that any such testing performed by GM would constitute "trial preparation materials" within the meaning of the rule and, accordingly, would not be subject to disclosure unless plaintiff demonstrates a "substantial need of the materials in the preparation of [plaintiff's] case and that [plaintiff] is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Fed. R. Civ. P. 26(b)(3). Defendant GM has responded to plaintiff's demand by denying that any crash or sled testing has occurred or is presently scheduled, but maintaining that even if such testing is scheduled in the future, plaintiff has not met the "substantial need" or "undue hardship" requirements of Rule 26(b)(3). (Affidavit of Neil A. Goldberg, sworn to on November 1, 1995 at P 20).
The issues as to whether crash or sled testing results would (1) be relevant to the subject matter in this litigation and (2) would constitute work product material are not disputed by the parties and therefore need not be addressed herein.
The only issue this Court is asked to determine is whether plaintiff has demonstrated a substantial need to attend any testing procedures in order to prepare its case and is unable to obtain its equivalent by other means without undue hardship. The burden is squarely on plaintiff to meet both prongs of this test. Toledo Edison Co. v. G.A. Technologies Inc., 847 F.2d 335, 340 (6th Cir. 1988); P&B Marina LTD Partnership v. Logrande, 136 F.R.D. 50, 57 (E.D.N.Y. 1991) aff'd without opinion 983 F.2d 1047 (2d Cir 1992).
Based upon the record before me, I find that plaintiff has not demonstrated substantial need or undue hardship as required by Rule 26(b)(3). In support of his request for unlimited access to crash testing, plaintiff's counsel avers, in a most conclusory fashion, that plaintiff has neither the financial resources or the facilities to "conduct the same elaborate testing that can be performed by these defendants". (September 20, 1995 affidavit of Thomas R. Monks, Esq. at P 29). Plaintiff fails to delineate what efforts, if any, have been made to have an independent expert conduct crash or sled testing, what the cost of such testing would be, what the financial resources of the plaintiff are and whether similar testing results conducted by other experts in cases involving the same or a similar product are currently available to plaintiff. Although expense is a factor that the court may consider in determining "undue hardship", In re International Systems & Controls Corp., 693 F.2d 1235, 1241 (5th Cir. 1982); Castle v. Sangamo Weston, Inc., 744 F.2d 1464, 1467 (11th Cir. 1984), facts supporting an undue hardship finding are lacking here. Moreover, plaintiff's moving papers are devoid of any allegation that his representatives need to be present for all future crash or sled testing to prepare their own case, an element that would seem to be explicitly required for successful invocation of the work product disclosure benefits of Rule 26(b)(3).
The fact that plaintiff would find it useful for his representatives to be present for all crash and sled testing that GM may perform in preparing for trial does not demonstrate substantial need or undue hardship. The work product doctrine was developed to "discourage counsel for one side from taking advantage of the trial preparation undertaken by opposing counsel, and thus both to protect the morale of the [legal] profession and to encourage both sides to a dispute to conduct thorough, independent investigations in preparation for trial." United States v. 22.80 Acres of Land, 107 F.R.D. 20, 24 ((N.D.Cal. 1985) citing Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385 (1947). Having conceded that access to GM's crash testing would be an invasion of GM's work product, plaintiff must do more than he has done here to meet the substantial need or undue hardship requirements of Rule 26(b)(3). Donahue v. American Isuzu Motors, Inc., 157 F.R.D. 238, 246 (M.D. Pa. 1994) (simply alleging that attendance at crash testing is necessary to effectively cross examine defendant's experts is "hardly the showing of substantial need and absence of alternative means for obtaining information required by Fed. R. Civ. P. 26(b)(3)".). See Poulin v. Greer, 18 F.3d 979, 985-986 (1st Cir. 1994) (affirming district court's denial of pretrial discovery of photographs taken by defense consultant during reenactment of automobile accident for failure of plaintiff to demonstrate substantial need.).
Plaintiff and GM jointly refer to the Second Circuit's decision in Fortunato v. Ford Motor Company, 464 F.2d 962 (2d Cir.), cert. denied, 409 U.S. 1038, 34 L. Ed. 2d 487, 93 S. Ct. 517 (1972) as supporting their positions with respect to the crash and sled testing issue. Both sides focus their attention on a single sentence found in the Fortunato case: "Test results should not even be admissible as evidence, unless made by a qualified, independent expert or unless the opposing party has the opportunity to participate in the test". Fortunato, supra at 966. (emphasis supplied). Reliance on Fortunato by either GM or plaintiff is misplaced. At issue in Fortunato was not the discovery of crash testing, but the distinctly different evidentiary issue of the admissibility at trial of crash test results. The lesson of Fortunato, albeit perhaps in dictum, is that litigants proceed at their own risk if intending on offering into evidence the results of crash or sled testing, either as direct evidence or as a basis for any expert opinion, without permitting the opposing party the opportunity to attend and view the testing procedure. See also Hall v. General Motors Corp., 207 U.S. App. D.C. 350, 647 F.2d 175, 181 (D.C. Cir. 1980) (no error in trial court's decision to exclude results of "eleventh hour" crash test conducted without the presence of plaintiffs representatives). The issue of admissibility, however, is not before this Court. Since neither side has apparently yet engaged in or scheduled crash or sled testing, to the extent the issue does arise, it is one best left for the trial judge to resolve at the time of trial.
Plaintiff shall respond to interrogatory number 23. The timing of such disclosure shall be in accordance with the provisions of this Decision and Order. Plaintiff's demand to be present at any crash or sled testing conducted by GM is denied.
Jonathan W. Feldman
United States Magistrate Judge
DATED: Rochester, New York
February 29, 1996