Humble Oil & Refining Company

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In roe Marrer oF HUMBLE OIL & REFINING COMPANY Docket 8544. Order, Aug. 14, 1964 Order denying respondent’s request to examine certain memoranda prepared by a Commission statistician.

Orprer Denyine RESPONDENT’s Motion To Compe Propuction or Documents On July 29, 1964, the hearing examiner certified to the Commission an ora] motion made by respondent during the course of hearings in this matter. Respondent sought an order compelling complaint counsel to furnish copies of certain memoranda written by one of his rebuttal witnesses, a Commission statistician, or in the alternative, an order striking the witness’ testimony. Respondent alleged that examination of the memoranda was necessary in order to test the witness’ qualifications and the validity of the expert opinion expressed in his testimony. The examiner regarded this motion as being in effect one to compel the production of confidential information from the files of the Commission, which could only be granted by the Commission itself under Section 1.134 of the Commission’s procedures and Rules of Practice. Therefore, he expressed his intention to certify the motion to the Commission. Although respondent stated that it did not desire the examiner to delay the proceedings by certifying the motion to the Commission, it did not withdraw the motion. Thus the motion remains to be acted upon.

Some of the documents sought by respondent, such as the transcript of the statistician’s testimony in a prior Commission proceeding, were plainly proper material for use in challenging the qualification of the witness to express an expert judgment or in attempting to impeach his testimony. These materials were readily available to respondent by resort to the Commission’s normal channels of public information. However, respondent has made no showing whatever that it attempted and failed to gain access to the materials by these means. Since these materials are plainly not confidential information within the meaning of Section 1.184, the examiner’s certification cannot be construed as covering respondent’s motion to compel production of them; the examiner had the authority to rule upon respondent’s motion at least to this extent and, as we read in the record, did so rule. Respondent also sought the production of certain internal memoranda that the staff statistician sometime in the past has prepared in the normal course of his staff duties, not related to his testimony in this or any other adjudicatory proceeding. While it is conceivable that examination of these might shed some light on the witness’ qualification to comment on respondent’s survey or might reveal a view about surveys that is inconsistent with the one expressed in his testimony, this possibility does not establish respondent’s right to have access to them. The thrust of respondent’s position is that there is a right to examine all of the undisclosed writings of an expert witness which in any way involve or reflect the use of his expert skills. Entirely apart from the obvious questions of privileged communication which arise in this case, it is apparent that this is a novel and wholly untenable view of the scope of impeachment. Almost any statement made by an expert witness, even one contained in a personal letter, conceivably could be relevant in evaluating the worth of his expert opinion. But it has been universally recognized that the line must be drawn somewhere—that a proceeding cannot be permitted to become a series of collateral and complex trials of the opinion of the expert witness, with the opponent of such testimony having an unfettered right of discovery with respect to everything the witness has said or written previously. In this instance, the Commission has no doubt that the attempt to impeach the opinion of a professional member of the Commission’s staff by examining the internal memoranda prepared by him in the normal course of his duties falls well outside the bounds of permissible voir dire or cross-examination. Accordingly, Tt is ordeved. That respondent’s motion be, and it hereby is, denied. INTERLOCUTORY ORDERS, ETC. 1541