Isaac v. Shell Oil Co.

83 F.R.D. 428, 28 Fed. R. Serv. 2d 542, 1979 U.S. Dist. LEXIS 10219
CourtDistrict Court, E.D. Michigan
DecidedAugust 23, 1979
DocketCiv. A. No. 78-71329
StatusPublished
Cited by16 cases

This text of 83 F.R.D. 428 (Isaac v. Shell Oil Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Isaac v. Shell Oil Co., 83 F.R.D. 428, 28 Fed. R. Serv. 2d 542, 1979 U.S. Dist. LEXIS 10219 (E.D. Mich. 1979).

Opinion

MEMORANDUM OPINION AND ORDER

JOINER, District Judge.

This case is before the court on defendant General Motors Corporation’s motion for a protective order against what it contends is plaintiff’s excessively burdensome and expensive request to produce documents pursuant to Federal Rule of Civil Procedure 34. Because the history of this litigation bears on the disposition of defendant’s motion, a brief synopsis follows.

Plaintiff Jack Isaac originally filed suit in April, 1978, against Shell Oil Company and Exxon Corporation, alleging that he contracted cancer as a result of coming into contact with certain chemicals, manufactured by Shell and Exxon, in the performance of his employment as a reconditioner and repairer of electroplating machinery. At the inception of this litigation, General Motors was not a party defendant, but had sent certain electroplating machinery, purchased from plaintiff’s employer Ionic International Company, back to Ionic for refurbishing. In an apparent attempt to determine what chemicals may have been on the machinery, plaintiff served upon General Motors subpoenas duces tecum, requesting information relating to all chemicals used in the electroplating process, and all purchasing, leasing, and repair documents and orders.1 General Motors’ motion to [430]*430quash the subpoena which, it claimed, was an excessively burdensome and expensive2 discovery request against a non-party to the suit, was denied, provided that plaintiff pay the costs of General Motors’ location and production of the requested information. Plaintiff responded by filing an amended complaint, joining General Motors as a party defendant.

Plaintiff alleges that General Motors, in sending its machinery to Ionic for maintenance and repair, sent along on the machines the residue of certain chemicals or combination of chemicals used in the electroplating process, and that these chemicals contributed to his cancer. Following the filing of his amended complaint, plaintiff, pursuant to F.R.C.P. 34, requested General Motors to produce documents identical to those requested earlier by subpoena duces tecum. General Motors moved for a protective order, and this motion is now before this court for determination.

In support of its motion for a protective order, General Motors points to plaintiff’s admitted ignorance of the identity of the exact chemicals used in the electroplating process, and whether the process leaves residue on the machinery which was harmful to plaintiff. General Motors contends that because of this ignorance, plaintiff has virtually no likelihood of proving his claim that General Motors utilized chemicals in its electroplating process which contributed to plaintiff’s cancer. In addition, General Motors asserts that the excessive cost of producing the requested information (over $17,000 for one division only, and a total estimated cost of over $50,000), mandates the issuance of a protective order.

Plaintiff, on the other hand, asserts that the identity of the chemicals used is overwhelmingly relevant to proving his claims against General Motors. In response to General Motors’ assertion that the discovery requested is prohibitively expensive, plaintiff maintains that defendant should not, solely because of its mammoth size and resultant clerical expenses, be allowed to avoid discovery which is necessary for a just adjudication of plaintiff’s claim.

The salutary purposes and effects of the Federal Rules pertaining to discovery are well known. As stated by the Supreme Court in Hickman v. Taylor,

[Cjivil trials in the federal courts no longer need be carried on in the dark. The way is now clear, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge of the issues and facts before trial. 329 U.S. 495, 501, 67 S.Ct. 385, 389, 91 L.Ed. 451 (1947).

In recent years, however, certain defects and abuses of the rules of discovery have been noted.3 Among these are the use of [431]*431discovery to protract litigation, delay adjudication, and to escalate the cost as a weapon against a financially weak adversary. Of particular interest to this court is the view that document production may be the discovery tool most susceptible to abuse, because:

each side has the ability to use a request for production as a means of imposing a burden on the other. The requesting party can force a discoveree to review an enormous mass of material and, in return, the discoveree will feel no pressure to restrict actual production to only materials that are truly relevant and material.4

These abuses and others have understandably led to proposals for reform.5

The motion before this court, however, must be granted or denied solely on the basis of the federal rules as in effect currently. Rule 34 provides that a party may serve on another party a request to produce and permit the inspection of documents in the possession of the party upon whom the request is served. The scope of discoverable documents is that of Rule 26(b): “any matter, not privileged, which is relevant to the subject matter involved in the pending action.”

Protective, orders are available pursuant to Rule 26(c) on motion for good cause shown. Where justice so requires, a protective order may issue to protect a party from annoyance, embarrassment, oppression, or undue burden or expense. It has been said, however, that good cause is not established solely by showing that discovery may involve inconvenience and expense. U. S. v. American Optical Co., 39 F.R.D. 580 (N.D.Cal.1966). It has also been said that a discoveree cannot avoid a proper discovery request by utilizing record keeping which conceals rather than discloses. Alliance To End Repression v. Rockford, 75 F.R.D. 441 (N.D.Ill.1977); Kozlowski v. Sears, Roebuck & Co., 73 F.R.D. 73 (D.Mass.1976). On the other hand, an overly broad request for discovery which constitutes no more than a fishing expedition will not be allowed. Segan v. Dreyfus Corp., 513 F.2d 695 (2d Cir. 1975).

The Supreme Court recently considered an issue analogous to the issue presented by the motion before this court. In Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978), the Court held that the defendant in a class action suit should not be responsible for any of the costs of determining the members of the purported class of plaintiffs. Although decided under F.R.C.P. 23(d), the Court’s rationale is applicable to the case at bar. The Court reasoned that because the cost was substantial ($16,000) and because the plaintiffs could obtain the desired information by paying the same amount that defendants would have to pay, defendants did not have to pay the cost. According to the Court, it mattered not that the cost was modest in relation to defendants’ ability to pay:

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Bluebook (online)
83 F.R.D. 428, 28 Fed. R. Serv. 2d 542, 1979 U.S. Dist. LEXIS 10219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/isaac-v-shell-oil-co-mied-1979.