Baker v. Cooper Farms Cooked Meats , 2009 Ohio 3320 ( 2009 )

[Cite as Baker v. Cooper Farms Cooked Meats, 2009-Ohio-3320.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
VAN WERT COUNTY
RUSSELL BAKER,
PLAINTIFF-APPELLEE, CASE NO. 15-09-03
v.
COOPER FARMS COOKED MEATS, OPINION
DEFENDANT-APPELLANT.
Appeal from Van Wert County Common Pleas Court
Trial Court No. CV08-12-616
Judgment Affirmed
Date of Decision: July 6, 2009
APPEARANCES:
Sara L. Rose and Mary Posciotta for Appellant
Eric A. Mertz for Appellee
Case No. 15-09-03
SHAW, J.
{¶1} Although originally placed on our accelerated calendar, we have
elected, pursuant to Local Rule 12(5), to issue a full opinion in lieu of a judgment
entry.
{¶2} Defendant-Appellant Cooper Farms Cooked Meats (“Cooper
Farms”) appeals from the February 9, 2009 Entry of the Court of Common Pleas,
Van Wert County, Ohio granting the Petition for Discovery of Plaintiff-Appellee
Russell Baker (“Baker”).
{¶3} On December 3, 2008 Baker filed a “Petition for Discovery,
Pursuant to Civ. R. 34(D) and O.R.C. §2317.48.” In his petition Baker alleged
that he was injured on October 6, 2008 while working in Cooper Farms’ factory
by a “Rapid Pack One” machine. Baker further alleged that there may be a
products liability claim and intentional tort claim related to the injury. However,
Baker claimed that he had insufficient information under which to pursue these
possible claims; and that his requests for information from Cooper Farms had been
denied.
{¶4} Baker requested that his counsel be provided with all statements
made surrounding the Rapid Pack One machine or his injury, as well as any
pictures. Additionally, Baker requested an order allowing him and his attorneys
and experts to see, inspect, examine, test, photograph, and/or videotape the
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machine or assembly line on which he was injured. Backer also attached
interrogatories and a request for the production of documents to his petition.
{¶5} On December 22, 2008 Cooper Farms filed a motion to dismiss or
alternatively, a motion for judgment on the pleadings. Baker responded to the
motion to dismiss/motion for judgment on the pleading on January 14, 2009. On
February 9, 2009 the trial court granted Baker’s petition for discovery.
{¶6} Cooper Farms now appeals, asserting a single assignment of error.1
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING PLAINTIFF-
APPELLEE [RUSSELL BAKER’S] PETITION FOR
DISCOVERY IN THAT IT ORDERED [COOPER FARMS]
TO OPEN UP ITS PREMISES TO BAKER, HIS ATTORNEYS
AND HIS AGENTS, FOR INSPECTION, EXAMINATION,
TESTING, PHOTOGRAPHING, AND/OR VIDEOTAPING
AND ORDERED [COOPER FARMS] TO RESPOND TO 18
INTERROGATORIES AND REQUESTS FOR PRODUCTION
OF DOCUMENTS WHEN (A) THE VAST MAJORITY OF
THE DISCOVERY IS NOT NECESSARY TO ASCERTAIN
THE IDENTITY OF A POTENTIAL ADVERSE PARTY; (B)
BAKER WAS NOT OTHERWISE UNABLE TO BRING THE
COMTEMPLATED ACTIONS; AND (C) BAKER DID NOT
MAKE REASONABLE EFFORTS TO OBTAIN
VOLUNTARILY THE INFORMATION FROM COOPER.
{¶7} In its first assignment of error, Cooper Farms argues that the trial
court erred in granting Baker’s discovery petition. This Court reviews discovery
1
We note that in response to the filing of this appeal, Baker filed a motion to dismiss arguing that the
February 9, 2009 order was not a final appealable order. However, this Court determined, in a judgment
Entry issued April 20, 2009, that “[t]he trial court’s judgment granting the petition to obtain discovery,
instituted as an independent action pursuant to R.C. 2317.48 and Civ. R. 34(D), is a ‘final order’ subject to
review on appeal.”
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issues under an abuse of discretion standard. State v. Ross, 3rd Dist. No. 1-08-47,
2009-Ohio-188, at ¶11; Geggie v. Cooper Tire & Rubber Co., 3d Dist. No. 5-05-
01, 2005-Ohio-4750, ¶ 25. An abuse of discretion constitutes more than an error
of law or judgment and implies that the trial court acted unreasonably, arbitrarily,
or unconscionably. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450
N.E.2d 1140. When applying the abuse of discretion standard, a reviewing court
may not simply substitute its judgment for that of the trial court. Id.{¶8} Actions for discovery are governed by R.C. 2317.48 which provides
as follows:
When a person claiming to have a cause of action or a defense to
an action commenced against him, without the discovery of a
fact from the adverse party, is unable to file his complaint or
answer, he may bring an action for discovery, setting forth in his
complaint in the action for discovery the necessity and the
grounds for the action, with any interrogatories relating to the
subject matter of the discovery that are necessary to procure the
discovery sought. Unless a motion to dismiss the action is filed
under Civil Rule 12, the complaint shall be fully and directly
answered under oath by the defendant. Upon the final
disposition of the action, the costs of the action shall be taxed in
the manner the court deems equitable.
{¶9} Additionally, Civ. R. 34(D) provides the proper procedure for an
action for discovery filed prior to the filing of an action as follows:
(1) Subject to the scope of discovery provisions of Civ. R.
26(B) and 45(F), a person who claims to have a potential cause
of action may file a petition to obtain discovery as provided in
this rule. Prior to filing a petition for discovery, the person
seeking discovery shall make reasonable efforts to obtain
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voluntarily the information from the person from whom the
discovery is sought. The petition shall be captioned in the name
of the person seeking discovery and be filed in the court of
common pleas in the county in which the person from whom the
discovery is sought resides, the person's principal place of
business is located, or the potential action may be filed. The
petition shall include all of the following:
(a) A statement of the subject matter of the petitioner's potential
cause of action and the petitioner's interest in the potential cause
of action;
(b) A statement of the efforts made by the petitioner to obtain
voluntarily the information from the person from whom the
discovery is sought;
(c) A statement or description of the information sought to be
discovered with reasonable particularity;
(d) The names and addresses, if known, of any person the
petitioner expects will be an adverse party in the potential
action;
(e) A request that the court issue an order authorizing the
petitioner to obtain the discovery.
(2) The petition shall be served upon the person from whom
discovery is sought and, if known, any person the petitioner
expects will be an adverse party in the potential action, by one of
the methods provided in these rules for service of summons.
(3) The court shall issue an order authorizing the petitioner to
obtain the requested discovery if the court finds all of the
following:
(a) The discovery is necessary to ascertain the identity of a
potential adverse party;
(b) The petitioner is otherwise unable to bring the contemplated
action;
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(c) The petitioner made reasonable efforts to obtain voluntarily
the information from the person from whom the discovery is
sought.
{¶10} A plaintiff requesting pre-complaint discovery must comply with the
requirements of Civ. R. 34(D). See Huge v. Ford Motor Co. 155 Ohio App.3d
730, 733, 803 N.E.2d 859, 2004-Ohio-232{¶11} An action for discovery is to be used only to uncover facts necessary
for pleading, not to gather proof to support a claim or to determine whether a
cause of action exists. Huge, 155 Ohio App.3d at 733 citing Marsalis v. Wilson,
149 Ohio App.3d 637, 778 N.E.2d 612, 2002-Ohio-5534. R.C. 2317.48 “occupies
a small niche between an unacceptable ‘fishing expedition’ and a short and plain
statement of a complaint or defense filed pursuant to the Civil Rules.” Poulos v.
Parker Sweeper Co. (1989), 44 Ohio St.3d 124, 127, 541 N.E.2d 1031. In other
words, R.C. 2317.48 “provide[s] a ‘satisfactory middle course’ for litigants who
require additional facts in order to sufficiently file a valid complaint, but who
already have enough factual basis for their assertions that the discovery process
would not be turned into a ‘fishing expedition.’” Fasteners for Retail v. Peck (Apr.
3, 1997), Cuyahoga App. No. 70818 citing Poulos, 44 Ohio St.3d at 126.
{¶12} In the present case, in evaluating Baker’s petition, the trial court
made the following observation about the evolution of Civ. R. 34(D):
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According to the Staff Notes of Civil 34, the 1993 amendment is
of particular benefit in an industrial accident case where the
injured worker will be able to inspect and copy documents that
can identify the manufacturer of the injury-causing machine.
{¶13} Moreover, the trial court made the following findings:
The court finds that the plaintiff satisfied all of the elements
required by Rule 34(D). Here, the plaintiff (1) does not know
the identity of the defendant, (2) the purpose of his discovery
request is to investigate a possible products liability claim due to
the injury plaintiff suffered while at work, (3) the plaintiff
documented attempts to obtain information voluntarily from the
defendant, (4) his request includes the names of potential
adverse parties, and (5) the plaintiff requests that the court issue
an order to allow plaintiff to obtain discovery.
{¶14} Cooper Farms makes three arguments as to why Baker was not
entitled to the requested discovery. First, Cooper Farms argues that Baker does
not need discovery to ascertain the identities of adverse parties. However, Baker
claims he may have a products liability action concerning the Rapid Pack One
machine. Without discovery, he has no way of knowing who to bring suit against
from a myriad of potential parties including: Cooper Farms, a main manufacturer,
a parts manufacturer, a maintenance person, etc. Discovery is vital to allow
Cooper to ascertain the correct party.
{¶15} Second, Cooper Farms argues that Baker does not need the requested
discovery to bring the contemplated action. However, Ohio Courts have held that
“[u]ltimately, [Civ. R. 34(D)] acts as a safeguard against charges that the plaintiff
filed a frivolous lawsuit in a case where the wrongdoer or a third party has the
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ability to hide the facts needed by the plaintiff to determine who is the wrongdoer
and exactly what wrong occurred.” See Committee Notes to Civ.R. 34(D). Benner
v. Walker Ambulance Co. (1997), 118 Ohio App.3d 341, 692 N.E.2d 1053. Here,
the requested discovery is necessary to ascertain who the wrongdoer is and exactly
what occurred.
{¶16} Third, Cooper Farms argues that Baker did not make reasonable
efforts to obtain discovery. However, Baker’s counsel sent a letter to counsel for
Cooper Farms, to which Cooper Farm’s counsel replied, rejecting the request and
stating that Baker could have the requested documents if he was willing to sign a
release against Cooper Farms. The trial court found this to be a reasonable effort,
and this Court agrees.
{¶17} Finally, Cooper Farms argues that Baker did not include sufficient
underlying facts in his petition to show his reason to believe he had a cause of
action. However, we disagree with this conclusion. In his petition, Baker stated
that he may have a products liability claim and an intentional tort claim. In
support of his claim, as previously recognized, Baker stated that he was injured
using the Rapid Pack One machine. However, Baker noted that without the
requested discovery, he was unable to ascertain who these claims would be against
and, whether both claims existed. Therefore, we note that Baker was not trying to
determine whether a cause of action existed, but was instead trying to seek facts
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with which to plead a cause of action he already believed existed, as required in
Smith v. Baumgartner, 6th Dist. Nos. OT-01-018, OT-01-014, 2002-Ohio-232.
{¶18} Therefore, this Court cannot find that the trial court abused its
discretion in ordering discovery, despite Cooper Farms’ assertions to the contrary.
Cooper Farms’ assignment of error is overruled.
{¶19} Based on the foregoing, the February 9, 2009 Entry of the Court of
Common Pleas, Van Wert County, Ohio granting Baker’s Petition for Discovery is
affirmed.
Judgment Affirmed
WILLAMOWSKI, J., concurs.
/jlr
ROGERS, J., Dissenting.
{¶20} I respectfully dissent from the opinion of the majority. R.C. 2317.48
provides that one may file a petition for discovery prior to filing a complaint, but
limits the circumstances under which this may be done. Civ.R. 34(D) provides for
the procedures in initiating the petition. However, because the authority for
initiating such an action is derived solely from the statute, the petitioner must
comply fully with that statute, which provides:
When a person claiming to have a cause of action or a defense to
an action commenced against him, without the discovery of a
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fact from the adverse party, is unable to file his complaint or
answer, he may bring an action for discovery, setting forth in his
complaint in the action for discovery the necessity and the
grounds for the action, with any interrogatories relating to the
subject matter of the discovery that are necessary to procure the
discovery sought. Unless a motion to dismiss the action is filed
under Civil Rule 12, the complaint shall be fully and directly
answered under oath by the defendant. Upon the final
disposition of the action, the costs of the action shall be taxed in
the manner the court deems equitable.
R.C. 2317.48.
{¶21} In this case, Appellee failed to make reasonable efforts to obtain the
discovery voluntarily, his request for discovery was overbroad, and his petition
failed to assert that he had a cause of action (claim) and the grounds for that claim.
{¶22} In Bridgestone/Firestone v. Hankook Tire Mfg. Co. (1996), 116 Ohio
App. 3d 228, the Ninth Appellate District reversed the trial court’s denial of a
motion to dismiss because the petitioner alleged that it had “reason to believe” that
there was a cause of action and found that the petition “failed to aver sufficient
facts to reveal a ‘potential cause of action’ * * *.” Id. at 232. Additionally, the
court found that:
The Ohio Supreme Court, in Poulos v. Parker Sweeper Co.
(1989), 44 Ohio St.3d 124, 541 N.E.2d 1031, considered the
application of R.C. 2317.48. The plaintiff in that action claimed
to be part owner and developer of a prototype sweeper for use in
movie theaters. He averred that the defendant, the other part
owner and developer, had refused to recognize his rights in the
prototype, “be they patent, contract, or inventor's rights.” Id. at
124, 541 N.E.2d at 1032. He filed an action pursuant to R.C.
2317.48 to obtain information that would let him determine “the
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status of the product and his possible rights.” Id. at 124, 541
N.E.2d at 1032. The Supreme Court explained that R.C. 2317.48
“occupies a small niche between an unacceptable ‘fishing
expedition’ and a short and plain statement of a complaint or a
defense filed pursuant to the Civil Rules.” Id. at 127, 541 N.E.2d
at 1034. The plaintiff in Poulos had averred sufficient facts to
reveal a “potential cause of action in contract.” Id. at 128, 541
N.E.2d at 1035. Accordingly, the Supreme Court concluded that
he was entitled to answers to interrogatories “limited and
directed toward only those facts necessary to draft a complaint.”
Id. at 127, 541 N.E.2d at 1035.
In this case, Bridgestone/Firestone failed to aver sufficient facts
to reveal a “potential cause of action” against either defendant.
Although it averred that it had “reason to believe” that
Hankook had obtained confidential, proprietary information
belonging to it and “reason to believe” that Kennedy had
disclosed confidential, proprietary trade secret information
belonging to it, those averments were not sufficient for purposes
of R.C. 2317.48. In order to fit into the small niche of prefiling
discovery allowed by that statute, the complaint would have had
to include the underlying facts and circumstances constituting
Bridgestone/Firestone's reason to believe. Further, those
underlying facts would have had to reveal that
Bridgestone/Firestone had causes of action against Hankook and
Kennedy. Apparently, Bridgestone/Firestone's reasons to
believe did not reveal that it had a cause of action against either
Hankook or Kennedy because, according to the averments of its
complaints, it was not seeking discovery needed to draft a
complaint based on a claimed cause of action, but rather was
seeking discovery to determine whether it had a cause of action
against either under any of three alternative legal theories.
Id. at 231-232. See, also, National City Bank, Northeast v. Amedia (1997), 118
Ohio App.3d 542 (holding that the complaint for discovery must contain sufficient
facts to reveal a potential cause of action).
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{¶23} Similarly, in this case, Appellee merely alleged that he may have a
claim for product liability or an intentional tort, and stated no facts as grounds for
either potential claim.
{¶24} Furthermore, I believe that the extent of the discovery requested was
far more than that contemplated by the statute, and that one letter requesting
grossly overbroad discovery cannot properly be characterized as a reasonable
effort to obtain the information necessary to file a complaint.
/jlr
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