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Frank C. Sparks Co. v. Huber Baking Co.

Superior Court of Delaware, New Castle County

February 16, 1955

FRANK C. SPARKS COMPANY, Plaintiff,
v.
HUBER BAKING COMPANY, a Delaware Corporation, Defendant and Counter-claimant, FRANK C. SPARKS COMPANY et al., Third Party Defendants. HUBER BAKING COMPANY, a Delaware corporation, Plaintiff,
v.
FRANK C. SPARKS COMPANY, et al., Defendants.

Actions by contractor against owner and by owner against contractors and others arising from alleged negligent manner in which concrete floor was laid. Owner counterclaimed, and contractor and others were made third party defendants. The Superior Court, Layton, J., held that, where testing laboratory operator employed by concrete maker to test concrete and further maker's customer relations had, in regard to allegedly defective floor laid by contractor with maker's concrete, made detailed report to maker, owner, and contractor in defense of personal injury actions brought by third parties, inspection by contractor of further report made by operator to owner in preparation of owner's defense would not be denied on ground that report was privileged as part of attorney's work product or that attorney-client privilege existed between owner's attorney and operator.

Motion to produce and inspect report granted.

Where testing laboratory operator employed by concrete maker to test concrete and further maker's customer relations had, in regard to allegedly defective floor laid by contractor with maker's concrete, made detailed report to maker, owner, and contractor in defense of personal injury actions brought by third parties, inspection by contractor, in action between owner and contractor, of further report made by operator to owner in preparation of owner's defense would not be denied on ground that report was privileged as part of attorney's work product or that attorney-client privilege existed between owner's attorney and operator.

Stewart Lynch, Wilmington, for Frank C. Sparks Co.

William Pricket, Wilmington, for Huber Baking Co.

[49 Del. 268] LAYTON, Judge.

On April 29, 1949, while Sparks was laying a concrete floor on the second story of the Huber Bakery, there was a collapse, a beam fell and part of the concrete floor fell. Several workmen were injured. Thereafter, Sparks laid a new concrete floor which, according to Huber, was unsatisfactory. A number of suits were filed, some for injuries to the workmen and these because of the alleged negligent manner in which the floor was laid.

The concrete with which the floor in dispute was laid was furnished by the

Page 658

Warner Co. This corporation tests and records the results thereof of all concrete which it sells. For the purpose of making such tests it has, for many years, retained the services of Delaware Testing Laboratories operated by one Frank Pritchett. Pritchett apparently keeps at least one fulltime employee at the Warner plant whose duty it is to test and check all materials, mixtures, etc., going into the concrete mix and to record the results. Upon complaint as to faulty concrete, Pritchett customarily makes tests and certifies his conclusions both to Warner and to the customer. It is admitted that Warner uses Pritchett's services among other things to further its customer relations.

After Sparks had laid the floor in question, Huber complained that it was wearing badly. Sparks notified Warner which caused Pritchett to investigate, test and report on the floor. In so doing, Pritchett visited Huber on several occasions and also conferred with representatives of Sparks. He filed a detailed report of his investigations both with Warner and Sparks.

Thereafter, the prosecution of these suits apparently gave way to preparation for the trial of the personal injury actions which involved a great deal more money. These latter actions having been settled last year, preparation for the trial of these suits commenced. In November or December, 1954, there was a conference between Sparks, Warner and Pritchett, looking to the preparation for trial of these suits where it was discovered for the first time that Pritchett had been specially retained by [49 Del. 269] Huber as an expert to aid in the preparation of its defense and had, in fact, made further tests upon the concrete floor and submitted a written report to Huber's attorney.

Sparks has moved for an inspection of this report and Huber resists upon the grounds that (1) the report in question is within the privilege defined in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, as being a part of the work product of an expert aiding an attorney in the preparation of his case, (2) there is an attorney-client privilege between Huber's attorney and Pritchett which cannot be invaded.

In Scourtes v. Fred W. Albrecht Grocery Co., D.C., 15 F.R.D. 55, 58, the Court defines the ‘ work product’ of an attorney as follows:

‘ The ‘ work product’ of an attorney consists only of impressions, observations and opinions which he has recorded and transferred to his file. Hickman v. Taylor, supra. It is the product of his investigation of a case in preparation for trial, in his capacity as attorney representing a client. It make no difference whether he functions autonomously or in the employ of a corporation in its legal department, so long as he is actually engaged in trial preparation. Likewise, the impressions, observations and opinions of a person hired by him and acting under his supervision and direction in the investigation of a case and its preparation for trial are part of his ‘ work product’ . * * * The ...


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