Lebehn v Mobil Oil Micronesia Inc [1998] FMSC 33; 8 FSM Intrm. 471 (Pon. 1998) (19 November 1998)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Lebehn v Mobil Oil Micronesia Inc, [1998] FMSC 33; 8 FSM Intrm. 471 (Pon. 1998)

CLARK LEBEHN,
a Minor, through his Next Friend,
MERLEEN LEBEHN,
Plaintiff,

vs.

MOBIL OIL MICRONESIA, INC.,
MOBIL OIL CORPORATION,
MOBIL OIL GUAM, INC., and
JOHN DOES 1-20,
Defendants.

CIVIL ACTION NO. 1998-005

ORDER

Andon L. Amaraich
Chief Justice

Decided: November 19, 1998

APPEARANCES:

For the Plaintiff:
Daniel J. Berman, Esq.
P.O. Box 1491
Kolonia, Pohnpei FM 96941

For the Defendants:
Fredrick L. Ramp, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Civil Procedure - Discovery; Evidence - Expert Opinion
Under the work product doctrine, even if a plaintiff demonstrates substantial need for factual information contained in the report of a consulting expert whose services a defendant sought in anticipation of litigation, he would have to show exceptional circumstances under FSM Civil Rule 26(b)(4)(B) before being entitled to discover the consulting expert's opinions. Lebehn v. Mobil Oil Micronesia, Inc., [1998] FMSC 33; 8 FSM Intrm. 471, 476 (Pon. 1998).

Civil Procedure - Dismissal; Civil Procedure - Service
When a plaintiff has not shown good cause for his failure to serve the summons and complaint on a foreign defendant within 120 days as required by FSM Civil Rule 4(j) or pursuant to one of the alternative methods for service in a foreign country allowed by FSM Civil Rule 4(i) the court will dismiss the complaint against without prejudice. Lebehn v. Mobil Oil Micronesia, Inc., [1998] FMSC 33; 8 FSM Intrm. 471, 477 (Pon. 1998).

Civil Procedure
The FSM Rules of Civil Procedure shall be construed to secure the just, speedy, and inexpensive determination of every action. Lebehn v. Mobil Oil Micronesia, Inc., [1998] FMSC 33; 8 FSM Intrm. 471, 477 (Pon. 1998).

Civil Procedure - Discovery; Civil Procedure - Interrogatories
A question, taken literally, that calls for information on any kerosene related incident involving damage to property or injury to persons occurring anywhere in the world throughout the existence of three corporate defendants is on its face, a request so broad that it clearly exceeds the scope of permissible discovery. Lebehn v. Mobil Oil Micronesia, Inc., [1998] FMSC 33; 8 FSM Intrm. 471, 478 (Pon. 1998).

Civil Procedure - Interrogatories
It is incumbent upon a party propounding interrogatories not to pose questions calling for information outside the scope of permissible discovery. An attorney's responsibility in this regard is controlled by FSM Civil Rule 26(g). Lebehn v. Mobil Oil Micronesia, Inc., [1998] FMSC 33; 8 FSM Intrm. 471, 478 (Pon. 1998).

Civil Procedure - Discovery; Evidence - Privileges
The appropriate test to determine the scope of work product protection to be afforded a document which serves the dual purpose of assisting with future litigation the outcome of which may be affected by a business decision, is that documents should be deemed prepared in anticipation of litigation if in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation. Where a document is created because of the prospect of litigation, analyzing the likely outcome of that litigation, it does not lose protection under this formulation merely because it is created to assist with a business decision. Lebehn v. Mobil Oil Micronesia, Inc., [1998] FMSC 33; 8 FSM Intrm. 471, 479 (Pon. 1998).

Civil Procedure - Discovery; Evidence - Privileges
Work product protection extends to subsequent litigation as long as the materials sought were prepared by or for a party to the subsequent litigation. Lebehn v. Mobil Oil Micronesia, Inc., [1998] FMSC 33; 8 FSM Intrm. 471, 481 (Pon. 1998).

Civil Procedure - Discovery; Evidence - Expert Opinion
Rule 26 does not authorize any discovery concerning experts who the other party does not intend to call as a trial witness absent a showing of exceptional circumstances. It would be "unfair" to allow a party to extract his adversaries' consulting expert's knowledge or opinion without having to bear any of the financial cost of retaining that expert and to take unwarranted advantage of the opponent's trial preparation or investigations. Lebehn v. Mobil Oil Micronesia, Inc., [1998] FMSC 33; 8 FSM Intrm. 471, 482-83 (Pon. 1998).

Civil Procedure - Discovery; Civil Procedure - Interrogatories; Evidence - Expert Opinion
Absent the requisite showing of exceptional circumstances, FSM Civil Rule 26 does not permit a party to obtain any information specific to an adversary's nontestifying experts through interrogatories. Lebehn v. Mobil Oil Micronesia, Inc., [1998] FMSC 33; 8 FSM Intrm. 471, 483 (Pon. 1998).

Civil Procedure - Discovery; Evidence - Expert Opinion
If a person is to be used by the defendants as a testifying expert, the plaintiff would be entitled to all the discovery authorized by FSM Civil Rule 26(b)(4)(A), and all documents the expert considered in forming his opinions would be discoverable as well. Lebehn v. Mobil Oil Micronesia, Inc., [1998] FMSC 33; 8 FSM Intrm. 471, 483 (Pon. 1998).

Civil Procedure - Service
The 120 day time limit to effect service does not apply to service in a foreign country pursuant to Rule 4(i). This exception was clearly intended to cover situations where the difficulties in accomplishing service make it impracticable to complete the task in that time. Lebehn v. Mobil Oil Micronesia, Inc., [1998] FMSC 33; 8 FSM Intrm. 471, 483 (Pon. 1998).

Civil Procedure - Dismissal; Civil Procedure - Service
When a plaintiff has not shown good cause for his failure to timely serve a defendant, a motion to dismiss without prejudice will be granted. Lebehn v. Mobil Oil Micronesia, Inc., [1998] FMSC 33; 8 FSM Intrm. 471, 484 (Pon. 1998).

* * * *

COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

This matter comes before the Court on two motions: 1) plaintiff Clark Lebehn's September 2, 1998 motion to compel defendants Mobil Oil Micronesia, Inc. (MOMI) and Mobil Oil Guam, Inc. (MOGI) to produce documents pursuant to FSM Civil Rule 37; and, 2) defendant Mobil Oil Corporation's (MOC) September 15, 1998 motion to dismiss plaintiff's complaint without prejudice pursuant to FSM Civil Rule 4(j).

These motions were extensively briefed by both parties. At a status conference on October 16, 1998 oral argument on the motions was waived, but counsel for both parties asked for and were granted an opportunity to file supplemental papers. On October 16, 1998 defendants filed a five page supplement, accompanied by 19 pages of exhibits, in opposition to plaintiff's motion to compel and in support of MOC's motion to dismiss. On October 21, 1998 plaintiff filed an eleven page reply supplement, accompanied by 81 pages of exhibits, in support of his motion to compel and in opposition to MOC's motion to dismiss. All documents submitted have been carefully considered by the Court.

I. Factual Background

A. The Lebehn Incident

This lawsuit arises from an incident which occurred on May 1, 1992 in which plaintiff Clark Lebehn suffered severe burns from a fire allegedly caused by contaminated kerosene sold by Mobil. According to the affidavit of MOMI/MOGI Field Operations Manager, Benjamin Lacson, this incident did not become known to Mobil (presumably referring to MOC, MOMI and MOGI) until mid-1997. The Lebehn incident is the only one of its kind known by either party to have taken place within the first ten months of 1992.

B. The November 1992 Through January 1993 Fires

From late November 1992 through early January 1993 a number of fires apparently caused by contaminated Mobil kerosene were experienced in Pohnpei. These fires were brought to Mobil's attention in mid-January 1993 prompting an investigation by several MOMI employees who, from what the Court can determine from plaintiff's reply supplement and MOMI's opposition brief, were acting in the ordinary course of business. A February 19, 1993 memorandum of findings from this investigation, prepared by Robert Manchester, an employee of MOMI, to the attention of its then President, E. F. Kaiser, together with correspondence referencing the memo and a copy of a police report were provided to plaintiff in response to his first set of interrogatories to MOMI and MOGI.

According to MOMI and MOGI's June 3, 1998 interrogatory responses, Mobil paid over $3.5 million to settle claims made as a result of these '92-'93 fires.[1]

C. The 1994 Fires

A similar problem with contaminated Mobil kerosene apparently causing flash fires in Pohnpei arose again in October 1994. As with the incidents of late 1992 and early 1993, MOMI and MOGI immediately undertook to investigate the cause of these accidents. This time MOMI and MOGI assembled a group of employees and sought the assistance of an outside chemist to determine the cause of the contamination. The team included John Banks, a master mechanic from Guam, Nestor T. Gellada, Chief Chemist of SGS Guam and Yalmer Helgenberger, MOMI's Pohnpei Bulk Plant Manager. Their work was supervised by Benjamin Lacson.

Details of the team's efforts are outlined in a November 4, 1994 letter from MOMI President, P. F. Rea, to then Governor of Pohnpei, Johnny David.[2] This letter appears to the Court as a reflection of MOMI's perceptions of the business and public relations problems presented by the 1994 fires and as an explanation of how it intended to solve these problems to minimize any disruption of its business in the FSM.

In addition to investigating these fires from a business perspective, MOMI alleges that it (or a related Mobil entity having control over the selection of its attorneys) anticipated the potential of litigation arising from the 1994 fires and arranged for an environmental health and safety consultant to investigate the matter and report to local counsel on his findings. According to his resume attached as an exhibit to defendants' opposition papers, the investigator, Gregory E. Munakata, is not now and has never been an employee of either MOMI or MOGI. Mr. Munakata travelled to Pohnpei in November 1994, spoke to a number of MOMI employees, examined components of the truck used to deliver the kerosene involved in the fires from a month before and met briefly with MOMI's local counsel, Fredrick Ramp, Esq.[3] After concluding his work, Mr. Munakata prepared a report for the benefit of counsel. It was addressed to attorney Ramp, labeled "PRIVILEGED AND CONFIDENTIAL", identified as work product and self-proclaimed as protected by the attorney client privilege.

An affidavit provided by plaintiff in support of his motion to compel the disclosure of the Munakata report indicates that it was not given to MOMI's Pohnpei Bulk Plant Manager despite a specific request. The Bulk Plant Manager, Yalmer Helgenberger, states in his affidavit that he did not request the services of Mr. Munakata and that he understood Mr. Munakata, "was sent to Pohnpei by Mobil Oil Corporation from Fairfax Virginia."

II. Procedural History

Plaintiff's complaint was filed with this Court on February 12, 1998. It had previously been filed with an undisclosed Court in Guam but was dismissed by that Court on February 2, 1998 following a motion to dismiss by Mobil. At the time of dismissal, it appears that both MOMI and MOGI had been properly served and were parties to the action.

Defendants MOMI and MOGI appeared in the present case by filing an answer on March 4, 1998. Prior to that time, on February 5, 1998 plaintiff served his first set of interrogatories and first document production request on MOMI and MOGI. Both sets of discovery requested compliance with the rules of civil procedure applicable in the District Court of Guam. Duplicate copies of these discovery requests were filed with this Court on March 5, 1998.

On May 18, 1998, after consulting with counsel for both parties and following their recommendations on dates, this Court issued a scheduling order imposing a discovery cut-off of September 21, 1998, a motion filing deadline of September 28, 1998 and a trial date of October 27, 1998. Between February and September 1998 the parties exchanged discovery requests and responses were provided. For unexplained reasons, plaintiff waited until September 1, 1998, more than one year after filing the original complaint in Guam and almost seven months after filing the complaint here, to serve MOC. At the time service efforts were begun by the mailing of a copy of the summons and complaint, plaintiff was aware that the trial was scheduled to begin in less than two months and no request for enlarging the time for trial was then before the Court.

III. Issues Raised by Motions

A. Plaintiff's Motion to Compel

In his motion to compel production of the report prepared by Gregory Munakata, plaintiff argues, among other things, that: 1) the report was prepared in the ordinary course of business and is undeserving of attorney work product protection even if its preparation was due in part to a concern over future litigation; 2) the report is not work product because it was not prepared in anticipation of the Clark Lebehn litigation as neither MOMI nor MOGI knew about his claim in 1994 or believed that it might arise (See pl.'s reply supp. at 5, line 28, at 6, line 1); 3) the report is a document prepared by an "expert witness" which MOMI and MOGI are obligated to turn over pursuant to FSM Civil Rule 26; 4) the report is relevant to the pending matter or contains information reasonably calculated to lead to the discovery of admissible evidence; and, 5) the report should have been identified in response to several questions from his first set of interrogatories and produced in compliance with the first document production requests and defendants' failure to do so, or to object to production, constitutes a waiver of any privilege that may otherwise exist.

Defendants initially counter these arguments by asserting the work product nature of the report and point to the requirements of FSM Civil Rule 26(b)(3) stating that plaintiff cannot meet the "substantial need" standard imposed by that rule prior to obtaining compelled production of work product. Defendants also argue that the report, prepared in association with an accident occurring more than two and one half years after the Lebehn incident and associated with different kerosene delivery equipment, is neither relevant to the subject matter of this case nor reasonably calculated to lead to the discovery of admissible evidence. After demonstrating the extent of their good faith compliance with plaintiffs other discovery[4] and explaining why disclosure of the Munakata report was initially overlooked, defendants point to the extreme overbreadth of plaintiffs discovery in this case and the unnecessary burden they would face if compelled to provide all of the requested information.

B. Defendant MOC's Motion to Dismiss

Defendant MOC requests the Court to dismiss the complaint against it without prejudice pursuant to FSM Civil Rule 4(j). MOC asserts that the motion is made,"in the interest of facilitating a just and prompt resolution of the underlying cause of action."

Despite the express, unambiguous and mandatory language of Rule 4, plaintiff argues that it is merely technical and requests the Court to overlook his failure to comply with its terms, or to otherwise attempt timely service. He also misstates that the rule does not apply to service in a foreign country. Plaintiff offers no explanation for his delay in serving MOC.

IV. Summary of Decision

A. Motion to Compel

The Court finds in favor of defendants MOMI and MOGI on plaintiff's motion to compel production of the Munakata report and for an order requiring defendants to provide further interrogatory responses. The Court finds that the report is protected by the work product doctrine and that plaintiff has not shown substantial need for the report or the inability to obtain the same information by other means. The Court also finds that defendants have shown good cause as to why the report was not initially identified and, given the extreme overbreadth of some of the discovery requests at issue, believes that the defendants have acted in good faith in complying with their discovery obligations. Therefore, they are excused for failing to object, either generally or specifically, to discovery requests broad enough to include the report at issue.

The Court is also satisfied that Mr. Munakata is a consulting expert whose services were sought in anticipation of litigation, rather than an expert retained for the purpose of providing opinion testimony at trial. Therefore, even if plaintiff had demonstrated substantial need for factual information contained in the report, he would have to have shown exceptional circumstances under FSM Civil Rule 26(b)(4)(B) before being entitled to discover Mr. Munakata's opinions.

Finally, the defendants have shown by a preponderance of the evidence submitted on the motions[5] that the truck used to deliver the kerosene involved in the 1994 fires (which may have had defects causing contamination) was not used to deliver kerosene on or before May 1, 1992. Thus, it does not appear to the Court at this time that the work done by Mr. Munakata in 1994 is relevant to the subject matter of this case or reasonably calculated to lead to the discovery of admissible evidence.

B. Motion to Dismiss

The Court finds that plaintiff has not shown good cause for his failure to serve the summons and complaint on MOC within 120 days as required by FSM Civil Rule 4(j) or pursuant to one of the alternative methods for service in a foreign country allowed by FSM Civil Rule 4(i). Therefore, the Court will dismiss the complaint against MOC without prejudice.

V. Discussion

A. Motion to Compel

In deciding both of the pending motions the Court is guided by FSM Civil Rule 1 governing the scope of the rules of civil procedure. It reads in full as follows:

Rule 1. SCOPE OF RULES

These rules govern the procedure in the Federated States of Micronesia Supreme Court Trial Division in all suits of a civil nature whether cognizable as cases at law or in equity or in admiralty. They shall be construed to secure the just, speedy, and inexpensive determination of every action.

FSM Civ. R. 1 (emphasis added).

1. The Discovery in General

Central to plaintiff's motion are two sets of discovery which bring into question his attorney's approach toward locating information necessary to establish a case of liability against MOMI and MOGI. The Court believes that discovery should be tailored to meet the reasonable needs of a party and not designed to invite objections or serve as a trap for the unwary. Question number 2 from plaintiff's first set of interrogatories epitomizes the problems created by discovery not carefully crafted to uncover information reasonably related to the issues in a case. It reads as follows:

2. Were any investigations, examinations, inspections, tests, experiments, or other studies made, statements taken, photographs taken, or reports prepared, submitted by you or on your behalf arising out of this May 1, 1992 occurrence, or any prior or subsequent incident where Mobil kerosene was alleged to cause injury to persons property [sic]?[6]

(emphasis added).

Since the "instructions" section of the interrogatories defines "you" to mean MOMI, MOGI and MOC, this question, taken literally, calls for information on any kerosene related incident involving damage to property or injury to persons occurring anywhere in the world throughout the existence of these three corporate entities. On its face, a request this broad clearly exceeds the scope of permissible discovery.

It is incumbent upon a party propounding interrogatories not to pose questions calling for information outside the scope of permissible discovery. An attorney's responsibility in this regard is controlled by FSM Civil Rule 26(g). It reads in pertinent part as follows:

(g) Signing of Discovery Requests, Responses, and Objections. Every request for discovery or response or objection thereto made by a party represented by an attorney . . . shall be signed . 0;#16160;. The signature .&re . .&#16onstitutes a certificaification that the signer has read the request, response, or objection, and that to the best of the signer's knowledge, information, and belief formed after a reasonable ry it is: (1) consistent wint with these rules and warranted by existing law or a good faith extension, modification, or reversal of existing law; (2) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (3) not unreasonable or unduly burdensome or expensive, given the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation . . . .

Iert certificatiication is made in violation of the rule, the court, upon motion or upon its own initiative, shall impose upon the person who made the certiion .;. . an appropriate sanction . .;.160;.&#160 .

iv. R. 2 R. 26(g).

The Court feels that the discovery at issue here is in many respects unreasonable, unduly burdensome and violative of the above rule. If not for the position tak counsel for defendants[7] the Court would be inclined to issue sanctions against plaintiff's counsel to deter him from future misuses of the discovery process.

2. Application of the Work Product Doctrine

(a) Fact Issues.

Plaintiff's motion repeatedly asserts that the Munakata report was prepared in the ordinary course of business and for a business purpose, rather than in anticipation of litigation. The Court believes that the facts supplied by plaintiff in support of his motion lead to the opposite conclusion.

First, MOMI's Pohnpei Bulk Plant Manager, Yalmer Helgenberger, who was identified by MOMI's President as being on the team designated to investigate the cause of the 1994 fires, was not given access to the report. If the primary goal of the team was to resolve the business problems MOMI confronted as a result of the 1994 fires (as suggested by Mr. Rea in his letter to Governor David) one would expect reports generated on the topic to be shared amongst team members. On the other hand, one would not expect reports prepared for a different purpose, such as to assist counsel in the event of future litigation, to be shared amongst lower level employees not directly involved with legal decision making.

Second, Mr. Munakata is not, and has never been, an employee of either defendant appearing in this action. The papers submitted to the Court show that his services were requested by someone outside of MOMI and MOGI in control of litigation on their behalf. It does not appear that Mr. Munakata would ordinarily be involved in a matter of this type and he was not called upon to help solve the '92-'93 contamination problems.

Third, Mobil's payment of more than $3.5 million as a result of the '92-'93 fires gives it strong incentive to anticipate, and prepare to defend against, litigation potentially arising thereafter from similar occurrences.

Fourth, according to affidavits submitted by defendants, the report is prominently marked "PRIVILEGED AND CONFIDENTIAL" and it was addressed to and sent to Mobil's local counsel.

(b) Legal Issues

Because of the attention Mobil gave to the 1994 fires serving as the genesis for the Munakata report, plaintiff argues that it was created, at least in part,"to foster the commercial disposition of [a] controversy that would stop the need for litigation." This Court believes that the appropriate test to determine the scope of work product protection to be afforded a document which serves the dual purpose of assisting with future litigation the outcome of which may be affected by a business decision, is set forth in the case styled United States v. Adlman, [1998] USCA2 64; 134 F.3d 1194 (2d Cir. 1998) as follows:

The formulation of the work-product rule used by the Wright & Miller treatise, and cited by the Third, Fourth, Seventh, Eighth and D.C. Circuits, is that documents should be deemed prepared "in anticipation of litigation," and thus within the scope of the Rule, if "in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation."

The Wright & Miller "because of" formulation accords with the plain language of Rule 26(b)(3) and the purposes underlying the work-product doctrine. Where a document is created because of the prospect of litigation, analyzing the likely outcome of that litigation, it does not lose protection under this formulation merely because it is created to assist with a business decision.

Id. at 1202 (citations omitted, emphasis in original).

Therefore, under this rule the Munakata report would be protected as work product even if its preparation played a part in resolving a business decision.

As a work product protected document the Court then turns to the degree of protection to which it is entitled by applying FSM Civil Rule 26(b)(3). This rule states the applicable standard for the discovery of an opposing parties work product as follows:

(3) Trial preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, trial counselor, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney, trial counselor, or other representative of a party concerning the litigation.

FSM Civ. R. 26(b)(3)(emphasis added).

As counsel for defendants aptly points out in the opposition papers beginning on page 12, line 21, through page 14, line 18, plaintiff fails to make the necessary showing of "substantial need" for the materials sought since all of the witnesses and much of the evidence considered by Mr. Munakata remain available to plaintiff.

Plaintiff also contends that the document should not receive work product protection because it was not prepared in anticipation of the Clark Lebehn litigation which, although arising from a previous accident, did not become known to defendants until after the 1994 fires were investigated.

However, the work product doctrine is not limited to materials created in anticipation of the lawsuit in which their production is requested. This principle is followed by the great majority of U.S. Courts which have addressed the issue. Since the FSM Rules of Civil Procedure are modeled after the U.S. Federal Rules of Civil Procedure, the Court feels that U.S. precedent is worthy of consideration here.

In the matter of Frontier Refining Inc. v. Gorman-Rupp Co., [1998] USCA10 187; 136 F.3d 695 (10th Cir. 1998), the court discusses the issue of work product protection extending to subsequent litigation and provides a review of the treatment this issue has received from various U.S. District Courts as follows:

The Supreme Court has recognized in dicta that "the literal language of [Rule 26(b)(3)] protects materials prepared for any litigation or trial as long as they were prepared by or for a party to the subsequent litigation." FTC v. Grolier Inc., [1983] USSC 105; 462 U.S. 19, 25[1983] USSC 105; , 103 S.Ct. 2209, 2213[1983] USSC 105; , 76 L.Ed.2d 387 (1983). According to the Supreme Court's dicta, Rule 26's language does not indicate that the work product protection is confined to materials specifically prepared for the litigation in which it is sought. Work product remains protected even after the termination of the litigation for which it was prepared. See id. The language from Grolier set out above, although dicta, provides a particularly strong indication that Rule 26(b)(3) applies to subsequent litigation.

In addition to the compelling Supreme Court dicta, it appears every circuit to address the issue has concluded that, at least to some degree, the work product doctrine does extend to subsequent litigation. At least one circuit, the Third, has suggested that the doctrine should only apply to closely related subsequent litigation, although it has declined to expressly so hold. At least two additional circuits, the Fourth and Eighth, extend the privilege to all subsequent litigation, related or not. Finally, at least three circuits, the Second, Fifth, and Sixth, have recognized that the work product doctrine extends to subsequent litigation, but have either declined to decide or have failed to discuss whether the doctrine extends only to subsequent litigation which is "closely related" to the underlying proceedings.

Based on the compelling dicta in Grolier and the reasoning set out in the circuit court opinions cited above, we conclude that the work product doctrine extends to subsequent litigation. This court need not, however, determine whether the subsequent litigation must be closely related because this indemnity action is unquestionably "closely related" to the underlying suit . .㼠.

136 >136 F.3d at 703 (alteration in original) (footnote and citations omitted).

Here, plaintiff argues that the anticipated litigation arising from the 1994 fires is so closely related that the report of Mr. Munakata's findings will establish liability in this lawsuit and will keep him from having to retain his own liability expert witness. As stated above, the Court does not agree with this position.

Nevertheless, given the qualified nature of work product protection, the Court believes the most well-reasoned approach to this issue is to extend the work product doctrine to all subsequent litigation. Otherwise, a party investigating an incident because of anticipated litigation may choose not to create a written report of findings (particularly if they are adverse to its position in the anticipated suit) out of fear that the report will later become the subject of compelled discovery. If no report exists, an adversary in future litigation will not be able to make a showing of "substantial need" under Rule 26(b)(3) or "exceptional circumstances" under Rule 26(b)(4)(B) to obtain the information contained within it. Under circumstances where the investigator becomes unavailable as a witness, the information within his knowledge may be lost forever. The party most likely to suffer the greatest under this scenario is a plaintiff who might otherwise have been able to overcome the qualified nature of work product protection.

Moreover, if a work product privileged document is deemed discoverable in an unrelated lawsuit, there is no guarantee that it won't then become part of the public domain eventually to be used against its creator in subsequent lawsuits closely related to the one it was prepared in anticipation of.

Since the literal language of the rule provides protection from discovery of work product in future litigation and does not unduly discourage the creation of confidential reports out of fear of future disclosure, the Court will not interpret it in the narrow sense suggested by plaintiff here.

Therefore, the Court finds that work product protection extends to subsequent litigation as long as the materials sought were prepared by or for a party to the subsequent litigation.

3. Expert Witness Issues

(a) Discovery on Nontestifying Experts

Defendants' opposition papers demonstrate that Mr. Munakata was not retained by either MOMI or MOGI to act as an expert witness to provide testimony at trial, nor has he been designated as such a witness, nor has it ever been Mobil's intention to use Mr. Munakata in this capacity. Instead, the Court finds that Mr. Munakata's services as a consulting expert were sought to assist local counsel in anticipation of litigation.

In arguing his right to compel production of the Munakata report (and in attacking the defendants for failing to identify Mr. Munakata and his report in response to certain interrogatories), plaintiff fails to differentiate between an expert retained for the purpose of providing opinion testimony at trial and one whose services are sought as a consultant. Similarly, plaintiff confuses the scope of discovery permitted with respect to an expert disclosed as a trial witness from that permitted from a non-disclosed consultant.

Plaintiff's motion to compel points to interrogatory No. 9, Set No. 1, and defendants response as "evidence" of Mobil's "dilatory and evasive" behavior in responding to discovery. Interrogatory No. 9 reads in full as follows:

9. Identify each person whom you have retained as an expert witness or otherwise to assist you in reviewing or analyzing this matter (including your damages) and state the following

a. Each person's name, address, occupation, and employer;

b. The subject matter on which person [sic] was retained;

c. The substance of the facts and opinions to which each person is expected to testify, if any; and

d. The summary of the grounds for each opinion.

The discovery of expert witness information through interrogatories is controlled by FSM Civil Rule 26(b)(4)(A)(i) which reads in full as follows:

(4) Trial preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(A) (i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the substance of the facts and opinions to which the expert is expected to testify and the summary of the grounds for each opinion . .㼠.

FSM >FSM Civ. R. 26(b)(4) (emphasis added).

Plaintiff's interrogatory No. 9 is faulty in that it seeks information regarding alained experts, whether or not defendants intend to call call the witness to provide opinion testimony at trial. Rule 26 does not authorize any discovery concerning experts who the other party does not intend to call as a trial witness absent a showing of exceptional circumstances. Discovery in this regard is governed by Rule 26(b)(4)(B) as follows:

(B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

FSM Civ. R. 26(b)(4)(B) (emphasis added).

FSM Civil Rule 26 finds its origin in the U.S. Federal Rules of Civil Procedure (FRCP). The current FSM Civil Rule 26 follows the 1970 amendment to the FRCP. The Advisory Committee Notes to the 1970 amendment indicate that discovery limitations applicable to nontestifying experts are based on principles of fairness. It would be "unfair" to allow a party to extract his adversaries' consulting expert's knowledge or opinion without having to bear any of the financial cost of retaining that expert and to take unwarranted advantage of the opponent's trial preparation or investigations.

Absent the requisite showing of "exceptional circumstances," the Court finds that FSM Civil Rule 26 does not permit a party to obtain any information specific to an adversary's nontestifying experts through interrogatories.[8] Therefore, defendants would not have been required to disclose information specific to the work of Mr. Munakata (including his identity) when responding to interrogatory number 9, even if they had not overlooked his 1994 investigations when preparing discovery responses. If this was not the rule, a party could discover what his adversary thinks is important in the preparation of his case by learning who he has consulted with, what tests or experiments he has paid third parties to conduct and which witnesses or evidence he has focused on or chosen to ignore.

(b) Discovery on Testifying Experts

Plaintiff's motion raises the possibility that defendants will seek to call Mr. Munakata as an expert witness to provide opinion testimony at trial. Although defendants have expressed no such intention (unless his report is ordered to be turned over), this issue warrants brief discussion in view of the parties' apparent confusion concerning expert witness discovery.

As the court in Frontier, supra, stated at page 704 of its opinion, "a litigant cannot use the work product doctrine as both a sword and shield by selectively using the privileged documents to prove a point but then invoking the privilege to prevent an opponent from challenging the assertion." 136 F.3d at 704. Following this reasoning, defendants cannot shield Mr. Munakata and his report from discovery while expecting to use him as a sword by offering his opinion testimony at trial. If Mr. Munakata is to be used by defendants as a testifying expert, plaintiff would be entitled to all the discovery authorized by FSM Civil Rule 26(b)(4)(A) and, all documents he considered in forming his opinions would be discoverable as well.

B. Motion to Dismiss

FSM Civil Rule 4(j) mandates that an action "shall" be dismissed, "if service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint . . . ." It also s ates that120 d120 day time limit does not apply to service in a foreign country pursuant to Rule 4(i). Plaintiff inappropriately states that the doesnply tany service in a foreign country.

The exception to the 120 day rule for service in a foreign country was clearly intended to cover situations where the difficulties in accomplishing service make it impracticable to complete the task in that time. This conclusion is strongly suggested by the alternative methods of service covered by Rule 4(i), some of which contemplate cooperation by the judiciary of the foreign country such as with a letter rogatory.

On the other hand, service in the United States can be easily accomplished by various convenient methods. In this case, it is not necessary for the Court to specify that Rule 4(i) was not intended to apply to service in the U.S. because plaintiff chose to ignore the alternative means authorized by that rule, opting instead to argue that he shouldn't be held to adhere to the mandatory language of the rule because it is a mere "technicality."

The Court is bothered by this approach particularly since the plaintiff offers no explanation as to why he waited so long to attempt service. At the same time, plaintiff is urging the Court to rearrange its calendar to afford him a speedier trial in complete disregard for the position MOC will find itself in (and the inevitable ensuing delays) if his wishes are met. It is difficult for the Court to accept plaintiff's counsel's arguments that defendants have continually employed unfair tactics during the course of this matter while he waited until eight weeks before the trial was initially set to begin before making his first attempt at serving MOC.

The Court finds that plaintiff had ample opportunity to serve every defendant he deemed necessary to the successful prosecution of his case. Because he has not shown good cause for his failure to timely serve MOC, the motion to dismiss without prejudice will be granted.

VI. Conclusion

For the reasons set forth fully above, the Court hereby orders that plaintiff's motion to compel production of documents and further interrogatory responses is denied and defendant MOC's motion to dismiss is granted.

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^[1] It appears from MOMI's interrogatory responses that at least 16 of the 19 claims made for injuries relating to these fires were settled and paid before the end of March 1993.

^[2] This letter was supplied to the Court by plaintiff as an exhibit to his September 3, 1998 opposition to defendants' motion to enlarge time. Since it is part of the Court's file and contains evidence of defendants' business practices which the Court finds relevant to the determination of an issue involved here, judicial notice of the document will be taken.
^[3] According to defendants' opposition papers, every witness with whom Mr. Munakata spoke is presently available to plaintiff. His attorney has already deposed two of them.

Likewise, the allegedly relevant physical evidence Munakata examined remains at the plaintiff's disposal.

^[4] Defendants indicate that approximately 10,000 documents have been made available for plaintiff's inspection and that approximately 1,300 of those have been copied and produced.

^[5] By this statement, the Court is not ruling that this issue is resolved entirely. Plaintiff is still entitled to conduct discovery on this issue and to test the credibility of witnesses and evidence as it pertains to which truck was involved in delivering the kerosene at issue here.

^[6] This appears to be a typographical error. The Court reads this question as though plaintiff intended it to state "persons or property" and believes that defendants, acting in good faith, read it in the same way rather than objecting on the grounds of vagueness and ambiguity or providing an answer responsive only to property losses. Further, plaintiff's counsel cites the Court to this interrogatory on pages 2 and 3 of his motion quoting the question as stating "persons or property."
^[7] At page 23 of defendants' opposition to plaintiff's motion to compel, the following is stated:

While Defendants feel the law fully supports the position they have taken and are hopeful and confident that the Court will rule in Defendant's favor on the Motion to Compel, and while Defendants deeply resent some of the hysterical references in Plaintiff's motion to such things as Defendant's alleged "dilatory and obstructive litigation tactics" (Motion p. 4), Defendants do not feel that sanctions are appropriate regardless of which way the Court rules and Defendant's do not seek sanctions against Plaintiff.

^[8] This does not foreclose obtaining non-specific information by other means of discovery when it is relevant to collateral matters, such as those arising during plaintiff's counsel's questioning of deposition witnesses who interacted with Mr. Munakata. If through such questions plaintiff learned that Mr. Munakata examined relevant evidence that had since become lost or destroyed "exceptional circumstances" might exist for discovering facts known or opinions held by him.