The opinion of the court was delivered by: MCVICAR
This civil action is before us on a motion by the Bethlehem Steel Company, third party defendant, for an order compelling Robert F. Mehl to answer certain questions addressed to him by the third party defendant in the taking of a deposition before a notary public in the City of Pittsburgh.
This case and three others consolidated with it are now pending in the United States District Court for the District of Connecticut. The plaintiff have brought actions to recover from The United Air Lines Transport Corporation and the United Aircraft Corporation, the sum of $100,000, alleged to have been caused by the crash of an airplane owned and operated by The United Air Lines Corporation, and powered with engines manufactured by the United Aircraft Corporation.
On December 14, 1939, the United States District Court for the District of Connecticut granted the motion of The United Air Lines Transport Corporation for leave to serve a summons and third party complaint upon Bethlehem Steel Company, as third party defendant. In the complaint filed, it was alleged by The United Air Lines Transport Corporation, that on May 24, 1938, it was the owner and operator of the airplane involved in the crash; that it was equipped with fourteen-cylinder engines, manufactured and sold by United Aircraft Corporation to The United Air Lines Transport Corporation; that Bethlehem Steel Company sold to the Aircraft Corporation the cylinder barrel forging of the cylinder hereinafter referred to; that the accident happened near Cleveland, Ohio; that the barrel of the No. 3 cylinder of the right-hand engine fractured and broke, and by reason thereof, the said airplane caught on fire and burst into flames; that the destruction of the airplane, the death of the passsengers, pilots and stewardess were due, among other things, to the negligence of the Bethlehem Steel Company in the manufacture of the said cylinder barrel forging.
On January 30, 1940, pursuant to leave of court, the Bethlehem Steel Company gave notice to The United Air Lines Transport Corporation that it would that the deposition of Robert F. Mehl at Pittsburgh, Pennsylvania.
On February 2, 1940, the United Air Lines Transport Corporation moved the court in which said actions are pending, for an order prohibiting the taking of said deposition, or limiting the deposition, and to expunge certain portions of the subpoena duces tecum authorized on the ground that the matters on which the defendant, the Bethlehem Steel Company, desired to examine said Robert F. Mehl were privileged because he was an engineering consultant retained as an expert in said cases by the attorneys for the Air Lines and that the knowledge acquired by said Robert F. Mehl and the communications made by him were in pursuance to said employment. This motion was denied by the United States District Court for the District of Connecticut, the court adding that the order was made "without attempting to pre-judge the propriety of any line of inquiry which may be pursued upon the taking of said depositions."
Upon the examination of said Robert F. Mehl before the notary public at Pittsburgh, he was asked the questions set forth in Exhibit A attached to plaintiff's motion. He refused to answer some of the questions asked on the ground of privilege, the privilege asserted being: "The claim of privilege which Dr. Mehl is asserting is, that he was employed subsequent to the commencement of these actions by Messrs. Haight, Griffin, Deming and Gardner, Attorneys for the defendant -- United Air Lines Transport Corporation -- to advise and assist that firm of attorneys in the preparation of the case for trial on its metallurgical aspects, and as such, having consulted with and assisted the attorneys in such preparation, Dr. Mehl asserts that the matters as to which he has been consulted are privilege, within the meaning of the Rules of Civil Procedure."
The questions asked were, in substance, as follows:
Whether the witness had seen and examined the cylinder involved.
Whether he had seen parts of the engine involved in the accident in this case.
Whether he was employed by The United Air Lines Transport Corporation to examine such cylinder.
To state the nature and scope of the examination made.
What tests, if any, he had made of said cylinder and engine, or any parts thereof. What were the ...