Makovec v. Chrysler Corp.

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 90-551


Debra Makovec, Administratrix of             Supreme Court
the Estate of Donald E. Makovec

     v.                                      Original Jurisdiction

Chrysler Corporation and
Alderman's Chevrolet                         December Term, 1990



William H. Quinn and Michael J. Gannon of Pierson, Wadhams, Quinn & Yates,
   Burlington, for petitioner

Robert A. Bloomer of Bloomer & Bloomer, P.C., Rutland, and Phyllis R. McCoy
   of Hull, Webber, Reis & Canney, Rutland, for respondent


PRESENT:  Allen, C.J., Gibson, Dooley and Johnson, JJ.


     DOOLEY, J.   Defendant Chrysler Corporation seeks extraordinary relief
from the Rutland Superior Court's refusal to close discovery and grant
summary judgment in two product liability actions that have been pending for
over five years.  We grant the petition in part.
     Both actions arise out of a two-car collision on June 10, 1983, in
which plaintiff's husband, the operator of one of the vehicles, was killed.
The police report concluded that the decedent had lost control of his car
while attempting to pass another vehicle at excessive speed in a no-passing
section of Route 7 near Rutland.  The complaint in the first action, filed
in June of 1985, alleged that the braking system of the car failed to
function properly and sought wrongful death damages.  The second action,
commenced in April of 1986, made the same liability allegations and sought
damages for loss of consortium.
     In July of 1985, plaintiff responded to defendant's  interrogatories by
stating that her expert witness was expected to testify that a failure of
the braking system caused her husband to lose control of his car.  In
October 1987, pursuant to a court order, defendant was permitted to depose
the expert, who was unable to testify that a defect in the vehicle caused
the accident.  Plaintiff produced no other expert testimony to support her
claim of a defective vehicle until January 8, 1991, approximately three
weeks after a hearing before this Court on defendant's petition for extra-
ordinary relief, when, in response to defendant's July 1985 interrog-
atories, she presented a two-page letter from an accident reconstructionist.
The report stated that the reconstructionist and a mechanic had examined the
decedent's car on January 3, 1991 and determined that malfunctioning brakes
and loss of steering had caused the accident.
     Between 1985 and 1989 plaintiff made several broad discovery requests
related to the brakes and rear axles of the model of car driven by the
decedent.  Over defendant's objections, plaintiff was permitted to discover
"all of the material presently in the possession and control of defendant
which is in any way related to the braking system, rear axle or any compo-
nent part thereof of any motor vehicle manufactured by defendant with a
rear axle and/or braking system similar or identical to that of [the model
driven by the decedent] . . . ."  Defendant delivered to plaintiff approxi-
mately ten boxes of documents and five boxes of customer complaints
regarding brakes and rear axles.  After the court denied plaintiff's motion
to depose Lee Iacocca, the chairman of the board of defendant corporation,
Mr. Iacocca responded to written interrogatories concerning comments he had
made in his autobiography about the quality of automobiles manufactured by
defendant.  Further, while the court refused to allow plaintiff to depose a
consultant of defendant who was not identified as an expected witness or to
seek discovery in other cases filed in Rutland Superior Court against
defendant, plaintiff did depose other potential witnesses, including the
investigating officer and eyewitnesses to the accident.
     In June of 1989, more than four years after she commenced the action,
plaintiff propounded a new set of interrogatories seeking information about
"tie rods, tie-rod ends or any other parts of the steering apparatus of [the
model driven by the decedent] during the model years 1977 through 1988."
Defendant objected and filed a motion to close discovery, arguing that the
requests imposed new and unreasonably burdensome discovery over four years
after discovery had begun.  On October 31, 1989, the court granted
defendant's motion in part, stating


            The Defendant, Chrysler Corporation, has moved for a
          protective order pursuant to V.R.C.P. 26(b)(1)(c) to the
          effect that the discovery in this case be closed.

            Until recently, the Plaintiff has pursued her
          product's liability claim on the theory that the braking
          system of the vehicle decedent was driving was
          defective.  Over a considerable period of time, broad,
          time-consuming discovery has been conducted.  More
          recently, the Plaintiff has shifted her focus to the tie
          rods of the vehicle.  She now seeks, in effect, to
          initiate an entirely new wave of discovery which
          promises to be as time-consuming and expensive as the
          first.  Although the Defendant's motion is tempting,
          such motions are not favored.  See generally, 8 Wright
          and Miller, Federal Practice and Procedure, sec. 2037.
          If discovery were terminated at this time, the case
          would effectively be terminated without allowing the
          Plaintiff an opportunity to explore a theory of
          liability which may, or may not, have merit.
            On the other hand, the Defendant should not be
          required to once again repeat with regard to tie-rods
          the exercise it went through previously with regard to
          braking systems.  A protective order is appropriate
          though not as broad in scope as Defendant suggests.

            Accordingly, the Defendant's obligation with regard
          to the pending discovery is limited to answering
          questions and identifying the documents required by the
          discovery request and providing the Plaintiff with
          reasonable access to such documents at Detroit, Michigan
          or such other places where the records might be stored.
          Bowman v. General Motors Corp., 64 F.R.D. 62 (D.C. Pa.
          1974).
     In December of 1989 defendant responded to plaintiff's tie-rod
interrogatories, and the next month the court denied plaintiff's motion to
compel more complete answers.  Plaintiff then sought to depose the corporate
executive who had signed the answers to the interrogatories.  Defendant
objected to the deposition and filed a motion for a protective order in
February of 1990.  Later that month, the court heard defendant's motion for
summary judgment, which had been filed four months earlier.  In response to
that motion, the court acknowledged that "the Plaintiff has failed to
produce evidence sufficient to avoid the motion for summary judgment," but
it refused to grant summary judgment because, unlike in Poplaski v.
Lamphere, 152 Vt. 251, 254-55, 565 A.2d 1326, 1328-29 (1989), no discovery
deadlines had been set, and plaintiff "is entitled to a fair opportunity to
complete her discovery as to the tie rods."  The court then ordered that
"discovery as to the tie rods shall be completed on or before May 1, 1990,"
and that "[n]o other discovery may be initiated without the prior approval
of the Court."
     The court's deadline passed, and on May 11, two days after defendant
filed a renewed summary judgment motion, a hearing was held on plaintiff's
motion to depose the Chrysler executive who had signed the answers to the
tie-rod interrogatories.  The court ruled that on or before June 15
defendant had to make available for deposition a witness knowledgeable about
changes in tie-rod sizes for the model car driven by plaintiff's husband.
The court specifically stated that defendant need not make available the
executive who signed the answers to the interrogatories unless that
executive was personally knowledgeable on the subject matter.  Defendant
made an appropriate witness available, but plaintiff refused to take the
deposition because the proposed witness was not the executive that she
sought to depose.  The court denied plaintiff's subsequent motion for
clarification, stating that "Plaintiff has failed to avail itself of the
court's prior indulgence of its requests."
     Meanwhile, defendant's renewed motion for summary judgment was set to
be heard on November 16.  On November 13, three days before the hearing, a
notice of appearance and a motion for a continuance was filed by a new
attorney representing plaintiff.  The motion stated that the new attorney
had been retained on November 7, 1990 "because Plaintiff's co-counsel feels
that he is incapable of withstanding the rigors of a trial."  The motion
also stated that the new attorney had contacted various expert witnesses who
would have reports available soon.  The court granted the motion and gave
plaintiff until January 10, 1991 to disclose an expert witness.
Defendant's motion for summary judgment was held in abeyance.  As far as we
are aware, the only report made available by plaintiff is that of the
accident reconstructionist mentioned earlier.  This report was addressed to
plaintiff's first attorney.
     Following the court's decision to grant plaintiff a continuance,
defendant filed a petition for extraordinary relief with this Court,
asserting that the Rutland Superior Court abused its discretion by failing
to limit plaintiff's discovery so as to allow defendant a "just, speedy, and
inexpensive determination" of the case against it.
     Extraordinary relief is available "where relief would have been
available at common law through a writ of mandamus, prohibition, or quo
warranto."  Ley v. Dall, 150 Vt. 383, 385, 553 A.2d 562, 563 (1988).
Defendant's petition is in the nature of a mandamus, which "is a command
from a higher authority to an administrator, executive, judicial officer or
inferior tribunal to perform a particular act, to which the party seeking
the relief has a clear right."  Id. at 385-86, 553 A.2d  at 563.  Where the
act complained of involves judicial discretion, as it does here, mandamus is
appropriate "only in those exceptional cases" where judicial power is
usurped or the court clearly abuses its discretion.  Id. at 386, 553 A.2d  at
564 (trial courts have broad discretion regarding discovery matters); see
also State v. Forte, 154 Vt. 46, 48, 572 A.2d 941, 942 (1990) (showing of
clear abuse of discretion or arbitrary abuse of power is required in order
to obtain extraordinary relief).  Accordingly, only in exceptional cases is
"extraordinary relief . . . an appropriate means for challenging a pretrial
discovery order on the ground of the trial court's abuse of discretion."
Monti v. State, 151 Vt. 609, 611, 563 A.2d 629, 630 (1989).
     We must determine, then, whether the court has clearly abused its
discretion by refusing to grant relief to which the complaining party has a
clear right.  Under V.R.C.P. 26(b)(1), the court "shall" limit the
"frequency or extent" of discovery if (i) it is unreasonably cumulative or
duplicative, (ii) it is unduly burdensome or expensive, taking into account
the needs of the case, or (iii) "the party seeking discovery has had ample
opportunity by discovery in the action to obtain the information sought."
The mandatory language of Rule 26(b)(1) was the result of a 1984 amendment
aimed at encouraging judges to be more diligent in preventing unnecessary
discovery.  Reporter's Notes, V.R.C.P. 26; see also English v. Cowell, 117 F.R.D. 132, 134 (C.D. Ill. 1986) (Fed. R. Civ. P. 26(b)(1) was amended to
encourage trial judge to be more aggressive in eliminating overdiscovery).
Under the amended rule, the trial court now has an affirmative duty to limit
discovery so as to protect parties from annoyance and excessive expense.
See, e.g., Dolgow v. Anderson, 53 F.R.D. 661, 664 (E.D.N.Y. 1971) (court
refused to reopen discovery where plaintiff supplied affidavit of expert
witness two years after court had ruled that there had been full discovery)
(cited with approval in Committee Note of 1983 Amendment to Fed. R. Civ. P.
26(b), as reported in 97 F.D.R. 165, 217 (1983)).
     Discovery is one of the most important legal tools available in the
search for truth, the fundamental purpose of litigation.  It allows parties
to acquire the fullest knowledge of relevant facts so that cases are decided
"by what the facts reveal, not by what facts are concealed."  Jampole v.
Touchy, 673 S.W.2d 569, 573 (Tex. 1984).  Accordingly, discovery should not
be cut off until the parties have had an ample opportunity to uncover
relevant facts.  On the other hand, the line must be drawn at some point
because "discovery techniques and tactics have become a highly developed
litigation art -- one not infrequently exploited to the disadvantage of
justice."  Herbert v. Lando, 441 U.S. 153, 179 (1979) (Powell, J.,
concurring).  Indeed, a great majority of both state and federal judges
indicated in a recent Harris poll that abuse of discovery is the most
important cause of delay and excessive expense in litigation.  Harris,
Judges' Opinions on Procedural Issues: A Survey of State and Federal Trial
Judges Who Spend at Least Half Their Time on General Civil Cases, 69 B.U.L.
Rev. 731, 733 (1989).  Because the incentive for lawyers and their clients
is often to further rather than minimize delay, see Rosenberg & King,
Curbing Discovery Abuse in Civil Litigation: Enough is Enough, 1981 B.Y.U.
L. Rev. 579, 589, the courts must utilize their power under Rule 26(b) to
ensure that the process is not being abused.
     Plaintiff's discovery has gone on for an unreasonable length of time
with no end in sight.  We can find no justification for allowing it to
continue and denying defendant consideration of its attempt to end the
litigation.  We do not accept that endless discovery is justified because
the "case involves a widow trying to obtain information about a faulty
design of a vehicle from a multimillion dollar corporation."
     Our rules require that a litigant have a good faith, and reasonably
supported, belief that his or her claim has merit and that the requests for
discovery are not interposed to harass or to cause unnecessary delay or
expense.  See V.R.C.P. 11; V.R.C.P. 26(g).  Thus, the purpose of discovery
is not to fish through every potential theory of recovery to determine if
there is any factual support for the theory.  See Segan v. Dreyfus Corp.,
513 F.2d 695, 696 (2d Cir. 1975); cf. Perkins v. General Motors Corp., 129 F.R.D. 655, 662 (W.D. Mo. 1990) (sanctions imposed under Rule 26(g) where
plaintiff and her attorney failed to conduct an objectively reasonable
inquiry into allegations made in interrogatory answers, which were
interposed to harass defendant and to increase the cost of litigation).  Nor
is it the purpose to change the economics of litigation so that the litigant
with the deepest pocket or the most perseverance will prevail in the end.
If we are unwilling to give relief from oppressive and unreasonable
discovery to a large corporation, we will be unable to intervene when a
large corporation uses an economic advantage to oppress an individual
litigant.
     Because it is indisputable that plaintiff had ample opportunity to
obtain the information she sought and that defendant has been unduly
burdened by plaintiff's discovery requests, we conclude that the court
abused its discretion by refusing to close discovery long after the passage
of the discovery deadline set by that court.  Cf. Poplaski v. Lamphere, 152
at 254-55, 565 A.2d  at 1328-29 (trial court properly denied plaintiff's
motion for a continuance for the purpose of completing depositions, filed
four days before scheduled summary judgment hearing, where plaintiff had
sixteen months between the filing of the complaint and the summary judgment
hearing in which to conduct the necessary depositions).  We fail to
understand how the fact that plaintiff's first attorney felt he would have
been unable to stand the rigors of a trial prevented the court from standing
by its own discovery deadlines and ruling on defendant's summary judgment
motion.  The need to act here was so clear, and the delay was so
unreasonable, that the circumstances warrant extraordinary relief in this
Court.
     Regarding defendant's request that this Court rule on his summary
judgment motion, we recognize that Poplaski held that "[s]ummary judgment is
mandated under the plain language of V.R.C.P 56(c) where, after an adequate
time for discovery, a party 'fails to make a showing sufficient to establish
the existence of an element' essential to his case and on which he has the
burden of proof at trial."  Id. at 254-55, 565 A.2d  at 1329.  We also
recognize that other jurisdictions have used their mandamus power to order
trial courts to enter summary  judgment where entitlement is clear.  See,
e.g., In re Charge of Judicial Misconduct, 593 F.2d 879, 881 (9th Cir.
1979); Roman Catholic Archbishop of San Francisco v. Superior Court, 15 Cal. App. 3d 405, 410, 93 Cal. Rptr. 338, 341 (1971).  Nevertheless, in the
absence of a complete record, we decline to direct the superior court to
enter summary judgment here.  Rather, we direct the court to close discovery
and rule on defendant's motion for summary judgment.  If summary judgment is
inappropriate at this time, the matter should proceed expeditiously to
trial.
     Petition for extraordinary relief is granted.  The Rutland Superior
Court is directed to close discovery and rule on defendant's motion for
summary judgment.

                              FOR THE COURT:



                              __________________________________________
                              Associate Justice