Koval v. Gen. Motors Corp., 137016

• Decision Date: 15 May 1990
• Docket Number: No. 137016,137016
• Citation: 62 Ohio Misc.2d 694,610 N.E.2d 1199
• Parties: KOVAL v. GENERAL MOTORS CORPORATION.
• Court: Ohio Court of Common Pleas

Page 694

62 Ohio Misc.2d 694

610 N.E.2d 1199

KOVAL v. GENERAL MOTORS CORPORATION.

No. 137016.

Court of Common Pleas of Ohio,

Cuyahoga County.

Decided May 15, 1990.

Spangenberg, Shibley, Traci & Lancione, John D. Liber and David L. Mast, Cleveland, for plaintiff.

Weston, Hurd, Fallon, Paisley & Howley, Mark O'Neill and Gary Johnson, Cleveland, George G. Lavin & Assoc., Basil DiSipio, Joseph O'Neil and George G. Lavin, Jr., Philadelphia, Pa., for defendant.

GORMAN, Judge.

This matter came on for hearing on the motion of defendant, General Motors Corporation ("General Motors"), pursuant to Civ.R. 26(C), for a protective order covering documents responsive to plaintiff's discovery requests. For the reasons that follow, the motion is denied.

Plaintiff, James Koval, was injured when his General Motors vehicle, a 1981 Buick Century, was struck from behind by a second vehicle. Plaintiff alleges that upon impact the gas tank of plaintiff's vehicle ruptured and burst into flames. Plaintiff's action is brought under, inter alia, strict liability in tort, with a specific allegation that the fuel system of plaintiff's vehicle was defectively designed.

Plaintiff sought discovery from General Motors and, in response, General Motors filed the present motion, with support in the form of the affidavit of William Cichowski, a General Motors engineer. Plaintiff opposed the motion by brief and with the affidavit of Billy Peterson, an automotive engineer and an expert retained by plaintiff in this case.

Thereafter, the matter came on for oral hearing on March 15, 1990. At the hearing General Motors presented four exhibits and the live testimony of Cichowski. Plaintiff opposed General Motors' motion, presenting a number of exhibits and affidavits and the live testimony of Harley Copp, a retired Ford Motor Company Executive and automotive engineer. Among the exhibits produced by plaintiff were two gas tanks, one made by General Motors for a 1981 Buick Century, and a virtually identical tank made by a Canadian Company called "The Gas Tank Factory, Ltd." Also included were two gas caps: one, a "genuine GM part," and a virtually identical cap that was sold as a replacement part. Both caps were made by a company called "Stant Engineering." The court thereafter recessed the hearing for three weeks in order to give General Motors the opportunity to depose Copp.

Thereafter, this matter came on for final hearing on April 25, 1990. At this hearing, General Motors presented, in support of its motion, the affidavits of Peter L. Welsher (a lawyer from Miami); Warren E. Finken (Director of the Patent Section of General Motors); Robert C. Lang (a former Ford Motor Company engineer); Robert S. Harris (Vice President of Stant Engineering); and Paul R. Mutty (another General Motors engineer). Plaintiff then presented an article from the May 1988 issue of Newsweek magazine, explaining how General Motors tears down and inspects its competitors' cars, and two videotape reproductions of television commercials, one by General Motors and one by Mercedes Benz, both concerning and displaying their respective test facilities and crash test procedures, all of which General Motors claims in this case to be confidential and competitively sensitive information.

General Motors seeks a protective order under the provisions of Civ.R. 26(C), claiming that some 2,200 documents that it is prepared to produce contain confidential commercial information and constitute trade secrets. General Motors argues and Cichowski testified that the information requested by plaintiff is confidential, available to only a limited number of General Motors employees for specified purposes and only under a specific distribution plan, that the documents requested are not made available to the general public, that they contain design criteria and elements of General Motors' design philosophy, and that these criteria and philosophy had been developed over a period of time at considerable expense. General Motors further argues that the unrestricted dissemination of these documents could improve the quality and performance of its competitors' products and could put General Motors at a competitive disadvantage. General Motors claims that it has met the prerequisites for a protective order, and that the court should enter the order it has proposed.

Plaintiff countered these arguments with testimony and exhibits, arguing that General Motors had not shown good cause as required by Civ.R. 26(C), that the documents at issue are twelve to twenty years old, that they are ancient history in a business that was and is continually evolving, and that they are of no present value to any competitor of General Motors. Plaintiff further demonstrated that there already exists competition with General Motors in the after-market or replacement-parts market, specifically, as to gas caps and tanks.

Civ.R. 26(C)(7) provides the foundation for General Motors' motion:

"Protective orders. Upon motion by any party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending 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 * * *."

The court has found no Ohio case law interpreting the "good cause" requirement of Civ.R. 26(C)(7); however, the parties have submitted case law from other jurisdictions which the court finds persuasive in this matter.

Several courts have held the requirement of "good cause shown" means that the applicant "will have to demonstrate that disclosure of allegedly confidential information will work a clearly defined and very serious injury to his business." Yurko v. Nissan Motor Corp. in U.S.A. (C.P.1984), Lackawanna Cty., Pa. No. 756, unreported; United States v. Internatl. Business Machines Corp. (S.D.N.Y.1975), 67 F.R.D. 40, 46; Zenith Radio Corp. v. Matsushita Elec. Indus. Co., Ltd. (E.D.Pa.1981), 529 F.Supp. 866, 891. Other courts have held in order to show good cause, the injury which allegedly will result from disclosure must be shown with specificity, and that conclusory statements to this effect are insufficient. United States v. Hooker Chemicals & Plastics Corp. (W.D.N.Y.1981), 90 F.R.D. 421, 425. See, also, Waelde v. Merck, Sharp & Dohme (E.D.Mich.1981), 94 F.R.D. 27, 28; Hendricks v. Jeep Corp. (D.Mont. June 3, 1986), case No. CV-82-092-M-PGH, unreported (a clear and serious injury must be identified).

Additionally, other courts have required the movant to show " 'a particular and specific demonstration of fact as distinguished from stereotyped conclusory statements.' " Garcia v. Peeples (Tex.1987), 734 S.W.2d 343, 345 (involving General Motors), quoting United States v. Garrett (C.A.5, 1978), 571 F.2d 1323, 1326, at fn. 3. In recent cigarette litigation the Third Circuit stated: " * * * Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning' " do not justify a protective order. Cipollone v. Liggett Group, Inc. (C.A.3, 1986), 785 F.2d 1108, 1121. See, also, Parsons v. General Motors Corp. (N.D.Ga.1980), 85 F.R.D. 724, 726 (" * * * GM's allegations of competitive harm are vague and conclusory when specific examples are necessary. * * * ")

The court, having reviewed the case law submitted by the parties, agrees with the above interpretations of the requirement "for good cause shown." The court, therefore, adopts the position that in order to show "good cause" a party requesting a protective order must demonstrate that disclosure of allegedly confidential information will work a clearly defined injury to the requesting party's...