SER Arrow Concrete Co. v. Hill
Annotate this Case
January 1995 Term
___________
No. 22842
___________
STATE OF WEST VIRGINIA EX REL.
ARROW CONCRETE COMPANY, A WEST VIRGINIA CORPORATION;
ARROW INDUSTRIES CORPORATION, AN OHIO CORPORATION;
AND PAUL BURGE, JR.,
Petitioners
v.
HONORABLE GEORGE W. HILL, JR., JUDGE OF
THE CIRCUIT COURT OF WOOD COUNTY, AND
ON TARGET CONCRETE, INC.,
Respondents
___________________________________________________
Petition for Writ of Prohibition
WRIT DENIED
___________________________________________________
Submitted: May 2, 1995
Filed: June 19, 1995
Charles R. McElwee
Robinson & McElwee
Charleston, West Virginia
Attorney for the Petitioners
Marvin W. Masters
Richard A. Monahan
Masters & Taylor, L.C.
Charleston, West Virginia
Attorneys for the Respondents
CHIEF JUSTICE McHUGH delivered the Opinion of the Court.
JUSTICE BROTHERTON AND JUSTICE RECHT did not participate.
JUDGE FOX and RETIRED JUSTICE MILLER sitting by temporary
assignment.
SYLLABUS BY THE COURT
1. "'A writ of prohibition is available to correct a
clear legal error resulting from a trial court's substantial abuse
of its discretion in regard to discovery orders.' Syllabus Point
1, State Farm Mut. Auto. Ins. Co. v. Stephens, 188 W. Va. 622, 425 S.E.2d 577 (1992)." Syl. pt. 1, State ex rel. Erickson v. Hill,
191 W. Va. 320, 445 S.E.2d 503 (1994).
2. Ordinarily the denial of a motion for failure to
state a claim upon which relief can be granted made pursuant to
West Virginia Rules of Civil Procedure 12(b)(6) is interlocutory
and is, therefore, not immediately appealable.
3. "Under Rule 26(b)(1)(iii) of the West Virginia Rules
of Civil Procedure, a trial court may limit discovery if it finds
that the discovery is unduly burdensome or expensive, taking into
account the needs of the case, the amount in controversy,
limitations on the parties' resources, and the importance of the
issues at stake in the litigation." Syl. pt. 2, State Farm Mutual
Automobile Insurance Co. v. Stephens, 188 W. Va. 622, 425 S.E.2d 577 (1992).
4. "Where a claim is made that a discovery request is
unduly burdensome under Rule 26(b)(1)(iii) of the West Virginia
Rules of Civil Procedure, the trial court should consider several
factors. First, a court should weigh the requesting party's need
to obtain the information against the burden that producing the
information places on the opposing party. This requires an analysis of the issues in the case, the amount in controversy, and
the resources of the parties. Secondly, the opposing party has the
obligation to show why the discovery is burdensome unless, in light
of the issues, the discovery request is oppressive on its face.
Finally, the court must consider the relevancy and materiality of
the information sought." Syl. pt. 3, State Farm Mutual Automobile
Insurance Co. v. Stephens, 188 W. Va. 622, 425 S.E.2d 577 (1992).
5. "The question of the relevancy of the information
sought through discovery essentially involves a determination of
how substantively the information requested bears on the issues to
be tried. However, under Rule 26(b)(1) of the West Virginia Rules
of Civil Procedure, discovery is not limited only to admissible
evidence, but applies to information reasonably calculated to lead
to the discovery of admissible evidence." Syl. pt. 4, State Farm
Mutual Automobile Insurance Co. v. Stephens, 188 W. Va. 622, 425 S.E.2d 577 (1992).
6. "The following six-factor test should be applied in
determining whether there is 'good cause' pursuant to Rule 26(c)(7)
of the West Virginia Rules of Civil Procedure to issue a protective
order: (1) The extent to which the information is known outside of
the defendant's business; (2) The extent to which it is known by
employees and others involved in the defendant's business; (3) The
extent of the measures taken by the defendant to guard the secrecy
of the information; (4) The value of the information to the
defendant and competitors; (5) The amount of effort or money
expended by the defendant in developing the information; and (6) The ease or difficulty with which the information could be properly
acquired or duplicated by others." Syllabus, State ex rel. Johnson
v. Tsapis, 187 W. Va. 337, 419 S.E.2d 1 (1992).
McHugh, Chief Justice:
The petitioners, Arrow Concrete Co., Arrow Industries
Corp., and Paul R. Burge, Jr., seek a writ of prohibition in order
to prohibit the Honorable George W. Hill, Jr., Judge of the Circuit
Court of Wood County, from enforcing an order compelling the
petitioners to respond to the respondent's discovery requests. The
petitioners are the defendants below and the respondent, On Target
Concrete, Inc., is the plaintiff below (hereinafter we will refer
to the parties as plaintiff and defendants). For reasons set forth
below, we decline to issue a writ of prohibition.
I.
On July 18, 1994, the plaintiff filed a four-count
complaint against the defendants in the Circuit Court of Wood
County alleging violations of the West Virginia Antitrust Act set
forth in W. Va. Code, 47-18-1, et seq., and alleging the common law
claim of tortious interference with present and prospective
business relations. The plaintiff and defendants are both in the
business of manufacturing, selling and/or pouring concrete and
related products in the State of West Virginia.See footnote 1
On August 11, 1994, the defendants served their joint
answer to the plaintiff's complaint as well as a counterclaim which
alleged that the plaintiff had misappropriated confidential
commercial information and tortiously interfered with the
defendants' business.
Thereafter, the plaintiff sent interrogatories and a
request for production of documents to the defendants. On August
19, 1994, the defendants filed objections to the plaintiff's
discovery requests. On September 6, 1994, the plaintiff filed a
motion to compel discovery, a motion for leave to submit additional
interrogatories, and a motion for leave to amend the complaint to
assert a claim pursuant to the Unfair Practices Act set forth in
W. Va. Code, 47-11A-1, et seq.
At a hearing held on September 12, 1994, the trial judge
made several rulings which were subsequently memorialized in an
order dated October 4, 1994. That order granted all of the
plaintiff's motions and ordered that "no party hereto or their
counsel shall publish or make public, beyond the necessary scope
and bounds of this litigation, nor make any use beyond the
necessary scope and bounds of this litigation, confidential
commercial and trade secret information of any party hereto." Also
in that order the trial judge ordered the defendants to respond to the plaintiff's discovery requests by October 12, 1994.See footnote 2
On October 5, 1994, counsel for the defendants contacted
counsel for the plaintiff and requested a forty-five to sixty-day
extension of the October 12, 1994 deadline on the basis that an
additional law firm had been recently hired to act as co-counsel
for the defendants. The plaintiff's counsel agreed to a forty-five
day extension, and on October 11, 1994, the trial judge entered a
proposed order acknowledging the extension of the deadline.
On November 28, 1994, the defendants served their
responses to the plaintiff's discovery requests. However, the
defendants unilaterally contended that their responses to the
discovery requests did not waive their previous objections or
prohibit them from seeking further judicial protection or
intervention. Additionally, the defendants stated that they were
unable to fully respond to the discovery requests because the FBI
and the IRS on October 19, 1994, executed a search warrant issued
by the United States Magistrate Judge for the Southern District of
West Virginia and seized business books and records of the
defendants. The defendants indicated that when the books and
records were returned they would more fully comply with the
discovery requests. Thereafter, on December 22, 1994, the
defendants filed a motion for suspension, reconsideration, and
rescission of the October 4, 1994 discovery order and a motion to dismiss the complaint for failure to state a claim upon which
relief can be granted, or in the alternative, for judgment on the
pleadings.
The plaintiff contacted the U.S. Attorney's Office in
March of 1995, in order to determine whether or not a procedure
existed by which it could obtain the defendants' records that were
being held by the government. By a letter dated March 20, 1995, an
Assistant United States Attorney informed the plaintiff that it was
the policy of the office to allow the persons from whom the records
were obtained access to the records. The Assistant United States
Attorney further indicated that the defendants could copy the
records they needed at their expense. Additionally, by telephone
the U.S. Attorney's Office informed the plaintiff that the
defendants' computer records were in the defendants' possession
since the government had taken only copies of the computer records.
Based on the above letter and conversations with the U.S.
Attorney's Office, the plaintiff filed a motion to compel a more
complete response to the plaintiff's discovery requests on March
24, 1995.
On March 31, 1995, the circuit court denied the
defendants' December 22, 1994 motion to dismiss the plaintiff's
complaint for failure to state a claim upon which relief can be
granted, or in the alternative for judgment on the pleadings. The
circuit court also denied defendants' motion for rescission or
suspension of the October 4, 1994 discovery order. The defendants thereafter filed the petition for writ of prohibition which is now
before us.
II.
Although the petition is convoluted, it appears that the
defendants are seeking a writ of prohibition for two reasons: (1)
the discovery of business secrets should not be compelled since the
plaintiff's complaint fails to state claims upon which relief can
be granted; and (2) the discovery is not relevant and is too
oppressive and burdensome and should, therefore, be limited by the
trial judge. We are mindful that a writ of prohibition is rarely
granted as a means to resolve discovery disputes: "'A writ of
prohibition is available to correct a clear legal error resulting
from a trial court's substantial abuse of its discretion in regard
to discovery orders.' Syllabus Point 1, State Farm Mut. Auto. Ins.
Co. v. Stephens, 188 W. Va. 622, 425 S.E.2d 577 (1992)." Syl. pt.
1, State ex rel. Erickson v. Hill, 191 W. Va. 320, 445 S.E.2d 503
(1994).See footnote 3 See also Nutter v. Maynard, 183 W. Va. 247, 250, 395 S.E.2d 491, 494 (1990) ("[R]eview of discovery matters is not
generally appropriate through extraordinary remedies[.]"); 63A Am.
Jur. 2d Prohibition § 62 at 194 (1984) ("Ordinarily, a petition for
a writ of prohibition to set aside a discovery order will be
denied[.]" (footnote omitted)).
A.
Initially, we address whether the discovery of business
secrets should be compelled since the defendants allege that the
plaintiff's complaint fails to state claims upon which relief can
be granted. As we previously pointed out, the trial judge below
denied the defendants' motion to dismiss for failure to state a
claim and for judgment on the pleadings.
The defendants assert that the plaintiff has failed to
allege the essential elements of each claim. Moreover, the
defendants contend that a more particularized pleading is required
when the complaint involves violations of the West Virginia
Antitrust Act and/or the Unfair Practices Act in order to protect
business secrets. See Baim & Blank, Inc. v. Warren-Connelly Co.,
19 F.R.D. 108, 109 (S. D. N.Y. 1956) ("The modern 'notice' theory
of pleading is not sufficient when employed in a complaint under
the anti-trust laws.") and Honorable Charles E. Clark, Special
Pleading in the "Big Case", 21 F.R.D. 45 (1957). But see Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 746, 96 S. Ct. 1848, 1853, 48 L. Ed. 2d 338, 345 (1976) ("[I]n antitrust
cases, where 'the proof is largely in the hands of the alleged
conspirator,'. . . dismissals prior to giving the plaintiff ample
opportunity for discovery should be granted very sparingly."
(citation omitted)) and Nagler v. Admiral Corporation, 248 F.2d 319
(2d Cir. 1957) (The Second Circuit Court of Appeals acknowledged
that these cases are often laborious and that some judges require
a more particularized pleading in this area; however, the Second
Circuit declined to require a more particularized pleading and
stated that if the defendant wanted more detailed information from
the plaintiff about the allegations in the complaint it could seek
the information through discovery.)
Indirectly, the defendants are asking this Court to
address the trial court's denial of their motion to dismiss for
failure to state a claim. In the syllabus of Wilfong v. Wilfong,
156 W. Va. 754, 197 S.E.2d 96 (1973), this Court concluded that
"[t]he entry of an order denying a motion for summary judgment made
at the close of the pleadings and before trial is merely
interlocutory and not then appealable to this Court."See footnote 4 (footnote
added). In arriving at this conclusion this Court noted:
The principle of non-appealability in
interlocutory rulings is well grounded in
reason. It prevents the loss of time and
money involved in piece-meal litigation and the moving party, though denied of immediate
relief or vindication, is not prejudiced. The
action simply continues toward a resolution of
its merits following a decision on the motion.
If unsuccessful at trial, the movant may still
raise the denial of his motion as error on the
appeal subsequent to the entry of the final
order.
Id. at 758-59, 197 S.E.2d at 99-100. (citations omitted).
Although Wilfong did not directly address the denial of
a motion for failure to state a claim upon which relief can be
granted made pursuant to W. Va. R. Civ. P. 12(b)(6), the above
rationale in Wilfong is nevertheless applicable to a 12(b)(6)
motion. See 15A Charles Alan Wright et al., Federal Practice and
Procedure § 3914.1 at 493 (2d ed. 1992) ("Ordinarily the denial [of
a motion to dismiss for failure to state a claim] is not
appealable." (footnote omitted)); Texaco, Inc. v. Cottage Hill
Operating Co., 709 F.2d 452, 453 (7th Cir. 1983) ("As a general
rule, denials of motions to dismiss are not appealable." (citations
omitted)); Akerson v. City of Bridgeport, 649 A.2d 796 (Conn. App.
Ct. 1994); School Bd. of Marion Co. v. Angel, 404 So. 2d 359 (Fla.
Dist. Ct. App. 1981) (Prohibition is not available to review the
correctness of a judge's ruling on a motion to dismiss); Thornton
v. Hickox, 886 P.2d 779 (Idaho 1994); Gutierrez v. Gutierrez, 860 P.2d 216 (N.M. Ct. App. 1993); and Venzel v. Enright, 623 N.E.2d 69
(Ohio 1993).See footnote 5
Although for obvious reasons the defendants resist
categorizing this prohibition as an appeal of the denial of a
motion to dismiss a claim for failure to state a cause of action,
essentially that is what this proceeding involves. Accordingly, we
hold that ordinarily the denial of a motion for failure to state a
claim upon which relief can be granted made pursuant to West
Virginia Rules of Civil Procedure 12(b)(6) is interlocutory and is,
therefore, not immediately appealable. Thus, the defendants may
not indirectly raise this issue by seeking a writ of prohibition in
order to preclude the trial judge from compelling discovery.See footnote 6
B.
Finally, we discuss whether the discovery in the case
before us is relevant, and, if so, whether it is too oppressive and
burdensome and should, therefore, be limited by the trial judge.
The defendants argue that the discovery is not relevant to the
complaint. Moreover, the defendants contend that the trial judge
should have limited the discovery requests of the plaintiff in the
following manner: (1) the trial judge should have imposed time-
period limits upon the discovery; (2) the trial judge should have
imposed geographic limits upon discovery; (3) the trial judge
should have denied plaintiff's discovery of the defendants' income
tax returns; and (4) the trial judge should have afforded more
protection to the discovery than that which was provided.
We are mindful that this Court has held the following in
syllabus points 2, 3, and 4 of State Farm Mutual Automobile
Insurance Co. v. Stephens, 188 W. Va. 622, 425 S.E.2d 577 (1992):
2. Under Rule 26(b)(1)(iii) of the West
Virginia Rules of Civil Procedure, a trial
court may limit discovery if it finds that the
discovery is unduly burdensome or expensive,
taking into account the needs of the case, the
amount in controversy, limitations on the
parties' resources, and the importance of the
issues at stake in the litigation.
3. Where a claim is made that a
discovery request is unduly burdensome under
Rule 26(b)(1)(iii) of the West Virginia Rules
of Civil Procedure, the trial court should
consider several factors. First, a court
should weigh the requesting party's need to
obtain the information against the burden that
producing the information places on the
opposing party. This requires an analysis of
the issues in the case, the amount in
controversy, and the resources of the parties.
Secondly, the opposing party has the
obligation to show why the discovery is
burdensome unless, in light of the issues, the
discovery request is oppressive on its face.
Finally, the court must consider the relevancy
and materiality of the information sought.
4. The question of the relevancy of the
information sought through discovery
essentially involves a determination of how
substantively the information requested bears
on the issues to be tried. However, under
Rule 26(b)(1) of the West Virginia Rules of
Civil Procedure, discovery is not limited only
to admissible evidence, but applies to
information reasonably calculated to lead to
the discovery of admissible evidence.
See also syl. pts. 3 and 4 of Truman v. Farmers & Merchants Bank,
180 W. Va. 133, 375 S.E.2d 765 (1988).
In Stephens, supra, State Farm Mutual Automobile
Insurance Company (hereinafter State Farm) sought a writ of prohibition from this Court in order to prohibit the trial court
from holding it in contempt for failing to comply with court-
ordered discovery. State Farm contended that the discovery order
in the bad faith action was oppressive and unduly burdensome. For
example, the interrogatories requested State Farm to provide
information on every claim filed against it nationwide since 1980
which involved allegations of bad faith, unfair trade practice
violations, excess verdict claims, and inquiries from insurance
industry regulators regarding State Farm's handling of claims. Id.
An affidavit of a State Farm employee, Gary Driscoll,
stated that it would cost $40 million to produce a list of all of
the bad faith claims filed against State Farm nationwide since
1980. Based on these facts, this Court found that the trial court
had substantially abused its discretion by compelling the above
discovery since the information sought, although relevant, was
unduly burdensome and oppressive. Id.
In the case before us, the defendants make a general
assertion that they should not be compelled to respond to the
discovery because the discovery involves information which is not
relevant and because the discovery involves the disclosure of
"highly sensitive, proprietary financial information elicited by
. . . a business competitor[.]" Specifically, the defendants
complain in their petition about the discovery of the following
information:
(1) pricing policy, price lists, and
price charged since 1984 for concrete and how
the prices were determined, including the use,
time periods, application and conditions of discounts, escalation clauses, formula,
multipliers, adjustments and labor and
material indices;
(2) a list by date and identification of
documents reflecting the cost of manufacturing
or producing concrete for each calendar
quarter since 1984, and the proportion of the
total costs represented by labor, materials
and all other cost items, both fixed and
variable;
(3) the gross and net sales of concrete
by quarter and year broken down according to
all domestic sales and all foreign sales;
(4) the total dollar amount of sales of
concrete monthly since 1984 from defendants'
Parkersburg/Vienna concrete plant, and to each
customer from that plant;
(5) the total dollar amount of sales
concrete monthly since 1984 within West
Virginia;
(6) a list of customers who have made
purchases of concrete since 1984 within West
Virginia from the Parkersburg/Vienna plant and
the date on which each purchase was made and
the amount of each purchase;
(7) a list of each study or report
concerning the productivity of labor,
including labor productivity used in any
negotiations of wage or salary with employees
since 1984;
(8) cost accounting policy;
(9) new entrants into the market and the
productive capacity and price structure of
other manufacturers of concrete since 1984;
and
(10) the income tax returns of each of
the two corporate defendants and the personal
income tax returns of the owner of the two
corporate defendants for each year since 1984.
(emphasis provided and footnote omitted).
As we have previously stated, "discovery is not limited
only to admissible evidence, but applies to information reasonably
calculated to lead to the discovery of admissible evidence." Syl.
pt. 4, in relevant part, of Stephens, supra. Our review of the
interrogatories and request for the production of documents
indicates that the information requested by the plaintiff is
"reasonably calculated to lead to the discovery of admissible
evidence." The very nature of an antitrust action or an unfair
trade practices action involves the discovery of how a business
conducts itself. However, the fact that business trade secrets are
being discovered does not make the information being sought less
relevant.
Furthermore, the discovery does not appear oppressive on
its face, and the defendants, unlike State Farm in Stephens, supra,
have failed to demonstrate how the discovery is oppressive and
unduly burdensome. With this in mind, we address the defendants'
specific arguments of how the trial judge should have limited the
plaintiff's discovery requests.
First, the defendants assert that the trial judge should
have imposed time-period limits upon the discovery. Specifically,
the defendants argue that the trial judge should have prevented the
plaintiff from discovering information from 1984 until 1993 since
the plaintiff was not even incorporated until 1993. The defendants
contend that the information requested in the 1980's is not
relevant.
Conversely, the plaintiff asserts that the Supreme Court
of the United States has expressly rejected this argument:
The trial court further erred in its
persistent exclusion of evidence relating to
the pre-1938 period, on the ground that since
[the petitioner] came to this country in 1938
nothing which transpired earlier could be
relevant to his suit. Petitioners sought to
introduce evidence that the conspiracy and
monopolization alleged began in the early
1930's . . . . This evidence was clearly
material to petitioners' charge that there was
a conspiracy and monopolization in existence
when they came into the industry, and that
they were eliminated in furtherance thereof.
Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690,
709-10, 82 S. Ct. 1404, 1416, 8 L. Ed. 2d 777, 790 (1962) (footnote
omitted). Although the plaintiff in the case before us does not
specifically assert into the complaint that the monopoly started
prior to its entrance in the market, common sense dictates that a
comparison between how the defendants conducted business prior to
plaintiff's entrance into the market with how the defendants
conducted business after the plaintiff's entered the market could
rationally lead to the discovery of admissible evidence. Thus, the
defendants have failed to show that the trial judge substantially
abused his discretion by not imposing time-period limits upon the
discovery.
Second, the defendants assert that the trial judge should
have imposed geographic limits upon the discovery because the
plaintiff's business is only in West Virginia whereas the
defendants' business encompasses four states. The plaintiff
correctly points out that the focus of the discovery is on the Parkersburg/Vienna area of West Virginia. Moreover, the plaintiff
notes that W. Va. Code, 47-18-4 [1978] states: "The establishment,
maintenance or use of a monopoly or an attempt to establish a
monopoly of trade or commerce, any part of which is within this
State, by any persons for the purpose of excluding competition or
controlling, fixing or maintaining prices is unlawful." (emphasis
added). Thus, information regarding the defendants' business in
the other three states could rationally lead to admissible evidence
regarding the existence of a monopoly which encompasses West
Virginia as well as other states. The defendants have failed to
show that the trial judge substantially abused his discretion by
not imposing geographic limits upon the discovery.
Third, the defendants assert that the trial judge should
have denied the plaintiff's discovery of the defendants' income tax
returns since they are not relevant. The plaintiff contends that
the income tax returns are relevant since it is seeking punitive
damages in its claim of tortious interference. See C.W.
Development, Inc. v. Structures, Inc., 185 W. Va. 462, 466, 408 S.E.2d 41, 45-46 (1991) (Recognizing the potential for recovery of
punitive damages under a tortious interference claim.) See also
syl. pt. 13, TXO Production Corp. v. Alliance Resources, Inc., 187
W. Va. 457, 419 S.E.2d 870 (1992), cert. granted in part by ___
U.S. ___, 113 S. Ct. 594, 121 L. Ed. 2d 532 and judgment affirmed
by ___ U. S. ___, 113 S. Ct. 2711, 125 L. Ed. 2d 366 (1993) (The
financial position of the defendant is a factor a jury may consider
when determining whether to award punitive damages.) The plaintiff argues that the defendants are alter egos of one another,
therefore, the wealth and financial position of the defendants are
factors relevant to whether the corporate veil may be pierced. Cf.
Norfolk Southern Ry. Co. v. Maynard, 190 W. Va. 113, 437 S.E.2d 277
(1993) and Laya v. Erin Homes, Inc., 177 W. Va. 343, 352 S.E.2d 93
(1986). Whether the plaintiff will prevail on any of the
aforementioned claims is not for this Court to decide.
Nevertheless, we agree that the information sought could lead to
the discovery of admissible evidence. Therefore, the defendants
have failed to demonstrate that the trial judge substantially
abused his discretion by allowing the discovery of the defendants'
income tax returns.
Fourth, the defendants argue that the trial judge should
have afforded more protection from the discovery of business and
trade secrets than that which was afforded. W. Va. R. Civ. P.
26(c)(7) does provide that protective orders may be entered in
order to prevent the disclosure of trade secrets:
Upon motion by a party or by the person
from whom discovery is sought, and for good
cause shown, the court in which the action is
pending or alternatively, on matters relating
to a deposition, the court in the district
where the deposition is to be taken may make
any order which justice requires to protect a
party or person from annoyance, embarrassment,
oppression, or undue burden or expense,
including one or more of the following:
. . . .
(7) That a trade secret or other
confidential research, development, or
commercial information not be disclosed or be
disclosed only in a designated way[.]
Furthermore, this Court has outlined factors which should be
considered when determining whether a protective order should be
issued:
The following six-factor test should be
applied in determining whether there is 'good
cause' pursuant to Rule 26(c)(7) of the West
Virginia Rules of Civil Procedure to issue a
protective order:
(1) The extent to which the information
is known outside of the defendant's business;
(2) The extent to which it is known by
employees and others involved in the
defendant's business;
(3) The extent of the measures taken by
the defendant to guard the secrecy of the
information;
(4) The value of the information to the
defendant and competitors;
(5) The amount of effort or money expended by
the defendant in developing the information; and
(6) The ease or difficulty with which
the information could be properly acquired or
duplicated by others.
Syllabus, State ex rel. Johnson v. Tsapis, 187 W. Va. 337, 419 S.E.2d 1 (1992).
As we previously pointed out, the trial judge did order
that the information discovered could not go beyond the parties
involved in this action. We fail to see nor do the defendants
suggest how the trial judge could provide more protection to the
defendants than he already has and still enable the plaintiff to
acquire more information regarding its claim against the
defendants. Cf. 4 James W. Moore, Moore's Federal Practice ¶ 26.27
at 26-396 (2d ed. 1995) (A trial judge must weigh the need of the party who is seeking the protective order to keep certain
information secret against the need of the party who is requesting
the discovery to have the information in the action.) Therefore,
the defendants have not shown that the trial judge substantially
abused his discretion by not entering a broader protective order.See footnote 7
In conclusion, the information requested by the plaintiff
is relevant to the complaint since it is "reasonably calculated to
lead to the discovery of admissible evidence." Moreover, unlike
State Farm in Stephens, supra, the defendants have failed to
demonstrate how the information requested is oppressive and unduly
burdensome. The defendants correctly point out that the trial
judge has broad authority to control the discovery process:
There have been repeated expressions of
concern about undue and uncontrolled
discovery, and voices from this Court have
joined the chorus. But until and unless there
are major changes in the present Rules of
Civil Procedure, reliance must be had on what
in fact and in law are ample powers of the
district judge to prevent abuse.
Herbert v. Lando, 441 U.S. 153, 176-77, 99 S. Ct. 1635, 1649, 60 L.
E.2d 115, 134 (1979) (footnote omitted). However, this Court will
not disturb the trial judge's decisions regarding discovery on a writ of prohibition unless the complaining party can show that the
trial judge substantially abused his discretion. See syl. pt. 1,
State ex rel. Erickson v. Hill, supra.
Upon all of the above, we hold that the defendants have
failed to show that the trial judge substantially abused his
discretion when compelling discovery. Thus, the defendants'
request for a writ of prohibition is denied.
Writ denied.
Footnote: 1
Although not specifically stated in the complaint or
in the record, the plaintiff asserts in its response to the
petition for a writ of prohibition which is before us that the
defendants informed the plaintiff when the plaintiff started
constructing its concrete plant that they would run the plaintiff
out of business. When the plaintiff persisted, the defendants
collected signatures for a petition that would be presented to
the West Virginia Division of Environmental Protection in order
to shut down the plaintiff's business. The plaintiff contends
that eventually the defendants had their sales people follow the
plaintiff's sales people, and when the plaintiff's sales people
would be making a contract, the defendants' sales people would
offer the contract at a lower price or at no cost and take the
business.
Footnote: 2
The defendants allege that they only had eight days to
respond to the plaintiff's discovery request; however, the
plaintiff points out that the defendants knew at the September
12, 1994 hearing that their response was due on October 12, 1994.
Footnote: 3
As this Court noted in Stephens, supra at 626 n. 4,
425 S.E.2d at 581-82 n. 4, the above rule is based on syllabus
point 1 of Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744
(1979):
In determining whether to grant a rule
to show cause in prohibition when a court is
not acting in excess of its jurisdiction,
this Court will look to the adequacy of other
available remedies such as appeal and to the
over-all economy of effort and money among
litigants, lawyers and courts; however, this
Court will use prohibition in this
discretionary way to correct only
substantial, clear-cut, legal errors plainly
in contravention of a clear statutory,
constitutional, or common law mandate which
may be resolved independently of any disputed
facts and only in cases where there is a high
probability that the trial will be completely
reversed if the error is not corrected in
advance.Footnote: 4
This Court, in Wilfong, went on to suggest that an
interlocutory order which denies a motion for summary judgment or
judgment on the pleadings may be certifiable to this Court under
certain circumstances. Id. at 759, 197 S.E.2d at 100.Footnote: 5
Although not an issue in the case before us, we note
that
[an] appeal [of a denial of a motion to
dismiss for failure to state a claim] is
available in a few special circumstances to
protect rights that are defined as rights
intended to protect against the burden of
trial rather than simply to protect against
the entry of judgment, but such appeals are
likely to be confined to clearly defined
situations. The best illustration, so long
as it stands, is provided by appeals based on
claims of official immunity.
Wright, supra at § 3914.1 at 493 (footnote omitted).
Additionally, in criminal cases the appeal of a denial of the
motion to dismiss the criminal charges may be appealable in
special circumstances. See, e.g., State v. Nearhood, 518 N.W.2d 165 (Neb. Ct. App. 1994) (An order denying defendant's motion to
dismiss the criminal charges pending against him because he has
not been tried within the 180 days time requirement is a final
appealable order.)Footnote: 6
Although we decline to address the merits of the
defendants' argument, we point out that this Court has held the
following in syllabus point 3 of Mandolidis v. Elkins Industries,
Inc., 161 W. Va. 695, 246 S.E.2d 907 (1978):
'The trial court, in appraising the
sufficiency of a complaint on a Rule 12(b)(6)
motion, should not dismiss the complaint
unless it appears beyond doubt that the
plaintiff can prove no set of facts in
support of his claim which would entitle him
to relief.' Syl. pt. 3, Chapman v. Kane
Transfer Co., ___ W. Va. ___, 236 S.E.2d 207
(1977) citing Conley v. Gibson, 355 U.S 41,
45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957).
When discussing the above syllabus point this Court has explained
that
[a]ll that the pleader is required to do is
to set forth sufficient information to
outline the elements of his claim or to
permit inferences to be drawn that these
elements exist. The trial court should not
dismiss a complaint merely because it doubts
that the plaintiff will prevail in the
action, and whether the plaintiff can prevail
is a matter properly determined on the basis
of proof and not merely on the pleadings.
John W. Lodge Dist. Co., Inc. v. Texaco, Inc., 161 W. Va. 603, 605-6, 245 S.E.2d 157, 159 (1978) (citation omitted).Footnote: 7 The defendants also assert that the circuit court erred in not affording the defendants a hearing on their motion to dismiss the complaint for failure to state a claim. However, the defendants fail to cite to any authority to support their contention that the circuit court should have held such a hearing. Therefore, since the issue was not adequately addressed in the defendants' petition, we decline to address this issue in this writ of prohibition. See syl. pt. 3, Higginbotham v. City of Charleston, 157 W. Va. 724, 204 S.E.2d 1 (1974), overruled on other grounds, O'Neil v. City of Parkersburg, 160 W. Va. 694, 237 S.E.2d 504 (1977).
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.