Carey Canada, Inc. v. Hinely

• Decision Date: 20 November 1986
• Docket Number: Nos. 72278,s. 72278
• Citation: 181 Ga.App. 364,352 S.E.2d 398
• Parties: CAREY CANADA, INC. v. HINELY et al. to 72303.
• Court: Georgia Court of Appeals

Page 398

352 S.E.2d 398

181 Ga.App. 364

CAREY CANADA, INC. v. HINELY et al.

Nos. 72278 to 72303.

Court of Appeals of Georgia.

Nov. 20, 1986.

Rehearing Denied Dec. 19, 1986.

Certiorari Granted Feb. 25, 1987.

Darlene Y. Ross, Savannah, E. Freeman Leverett, Elberton, John D. Jones, Atlanta, for appellant.

Richard A. Middleton, Eugene C. Brooks IV, Savannah, for appellees.

POPE, Judge.

Defendant Carey Canada, Inc. brings these 26 appeals ¹ from an order entered in each case imposing sanctions pursuant to OCGA § 9[181 Ga.App. 365] -11-37(b). As the issues raised in these appeals are the same, we have consolidated them for the purpose of review.

On May 30, 1980 plaintiffs brought the first of these 26 actions for asbestos products liability against defendant and others in the State Court of Chatham County. These cases were consolidated for the purpose of discovery, and special discovery procedures were established by order dated July 23, 1982. The trial court directed that because of the special nature of asbestos litigation, the July 23 order "shall be deemed to be an order compelling discovery." On December 21, 1982 plaintiffs sought the production of certain company records or documents from defendant. On January 11, 1983 defendant objected to this request on a variety of grounds, including the constraints of the Province of Quebec's Business Concerns Records Act, Que.Rev.Stat. c. 278 (1964). This act provides that business concerns in Quebec (such as defendant) may not send business-related documents outside the province, subject to certain exceptions. On February 8, 1983 plaintiffs filed a motion to compel the production of documents; this motion was also opposed by defendant on the basis of the Business Concerns Records Act. On April 8, 1983 plaintiffs filed a motion for letters rogatory (see OCGA § 9-11-28(b)) which, as counsel for all parties agreed, could be utilized to legally circumvent the obstacles posed by the Business Concerns Records Act. On August 5, 1983 the trial court ordered its clerk to issue letters rogatory to the appropriate authority in Canada. This order was objected to by defendant and, following a hearing on the matter, appears to have been abandoned. On November 17, 1983, after notice and hearing, the trial court overruled all of defendant's objections to production of documents and directed defendant to produce said documents no later than December 9, 1983. Defendant then instituted a variety of legal maneuvers in an unsuccessful attempt to obtain relief from or interlocutory review of the November 17 order. On October 3, 1984 plaintiffs moved for the imposition of sanctions pursuant to OCGA § 9-11-37(b). A hearing on this motion was held on October 22, 1984 and on December 31, 1984 the trial court entered the order here appealed.

1. Defendant's fifteenth enumeration cites as error the entry of the December 31, 1984 order because the judge who made the order, Hon. James W. Head, had taken the oath of office as judge of the Chatham County Superior Court on December 27, 1984. The record discloses that Judge Head was elected as judge of the superior court for a term beginning January 1, 1985 and that he resigned as judge of the state court effective on that date. We are aware of no constitutional or statutory bar to Judge Head's continuing to serve as judge of the state court until the effective date of his resignation from that office, notwithstanding his having taken the oath of office of judge of the superior court a few days before his term of office was to begin. See Ga. Const. 1983, Art. VI, Sec. VII, Par. I; OCGA § 15-6-6. It follows that Judge Head was authorized to enter the subject order on December 31, 1984.

2. Defendant's first and eighth enumerations attack plaintiff's request for production of documents as "too broad." The trial court found that the documents sought by plaintiffs were "relevant and necessary to the discovery process calculated to lead to the discovery of admissible evidence in the litigation which is complicated, which involves multiple parties with various business relationships in mining producing, manufacturing, and distributing products containing asbestos."

Discovery is "an integral and necessary element of our civil practice. Wide latitude is given to make complete discovery possible. The broad purpose of the discovery rules, under the Civil Practice Act, is to enable the parties to prepare for trial so that each party will know the issues and be fully prepared on the facts. Discovery is specifically designed to fulfill a two-fold purpose: issue formulation and factual revelation. The use of the discovery process has been held to be broadly construed. [Cits.]" Travis Meat, etc., Co. v. Ashworth, 127 Ga.App. 284, 285-86, 193 S.E.2d 166 (1972). "There is no territorial limitation in our discovery statutes as to location of witnesses, documents, assets, etc. [Cits.]" Thrift v. Vi-Vin Prods., 134 Ga.App. 717, 718, 215 S.E.2d 709 (1975). "Discovery is available under the CPA to any party in any court regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action; it is not a ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. [Cit.]" Morton v. Gardner, 242 Ga. 852, 857, 252 S.E.2d 413 (1979).

"Good cause for the issuance of a protective order designed to frustrate discovery must be clearly demonstrated. [OCGA § 9-11-26(c).] Such cause necessarily is not established by stereotyped or conclusional statements, bereft of facts. The trial court does have a wide discretion in the entering of orders permitting or preventing the use of ... discovery which [is] oppressive, unreasonable, unduly burdensome or expensive, harassing, harsh, insulting, annoying, embarrassing, incriminating or directed to wholly irrelevant and immaterial or privileged matters, or as to matter concerning which full information is already at hand. [Cit.]" Young v. Jones, 149 Ga.App. 819, 824, 256 S.E.2d 58 (1979). See Sorrells v. Cole, 111 Ga.App. 136(2a), 141 S.E.2d 193 (1965). "It is contemplated that the trial [court] will exercise a sound and legal discretion in the grant or denial of protective orders. Such are intended to be protective--not prohibitive--and, until such time as the court is satisfied by substantial evidence that bad faith or harassment motivates the [discoveror's] action, the court should not intervene to limit the scope of pretrial discovery." Travis Meat, etc., Co. v. Ashworth, supra, 127 Ga.App. at 288-89, 193 S.W.2d 166.

We will not burden this opinion with a lengthy factual analysis of plaintiffs' request for production. In view of the standards set forth above, suffice it to say that we have reviewed said request in light of defendant's objections thereto and find no abuse of discretion in the trial court's overruling same. Cf. E.H. Siler Realty, etc., v. Sanderlin, 158 Ga.App. 796(2), 282 S.E.2d 381 (1981), wherein a request for "all documents" intended for use as evidence at the trial of the case was found to be outside the permissible scope of discovery, but a request for "all documents" relied upon to demonstrate and support facts relevant to the litigation would be within the permissible scope discovery; Bullard v. Ewing, 158 Ga.App. 287, 279 S.E.2d 737 (1981), wherein a request for the name, address and telephone number of every individual, corporation or company for whom the defendant performed construction or building repair work since 1975 was found to be unreasonably broad and too general. See generally Vaughn & Co. v. Saul, 143 Ga.App. 74(4), 237 S.E.2d 622 (1977).

3. Defendant's second and forth enumerations challenge the imposition of sanctions adjudicating liability in this case as not relating to the issues made by the request for production. Pursuant to OCGA § 9-11-37(b)(2)(A, B, C) the trial court imposed the following sanctions: "1. The following facts, matters and conditions are established as true for purposes of [these lawsuits]: (a) That Defendant Carey Canada, Inc. did sell asbestos containing products; (b) That Plaintiffs were exposed to the asbestos containing products sold by Defendant Carey Canada, Inc.; (c) That Plaintiffs have suffered personal injury and/or death as a result of being exposed to the asbestos containing products sold by Defendant Carey Canada, Inc.; (d) That the Defendant Carey Canada, Inc., failed to warn the Plaintiffs and each of them of the dangerous characteristics of their asbestos-containing products and is, therefore, guilty of negligence as a matter of law; (e) That the Defendant Carey Canada, Inc. knowingly suppressed and covered up knowledge of the dangers of asbestos in order to maximize corporate profits in complete and utter disregard of the adverse health effects upon persons exposed to asbestos products manufactured and sold by Defendant Carey Canada, Inc.; 2. That Defendant Carey Canada, Inc. is prohibited from submitting or offering any evidence or testimony to contradict any facts alleged by Plaintiffs or to support any defense alleged by Defendant Carey Canada on any issues of liability."

The question here is not whether this court as an original matter would have applied these sanctions; it is whether the trial court abused its discretion in so doing. Insurance Corp. of Ire. v. Compagnie Des Bauxites de Guinee, 456 U.S. 694, 707, 102 S.Ct. 2099, 2106, 72 L.Ed.2d 492 (1982); see Dean v. Gainesville Stone Co., 120 Ga.App. 315, 170 S.E.2d 348 (1969). OCGA § 9-11-37(b)(2) "contains two standards--one general and one specific--that limit a [trial] court's discretion. First, any sanction must be 'just'; second, the sanction must be specifically related to the particular 'claim' which was at issue in the order to provide discovery." Ins. Corp. of Ire., supra, 456 U.S. at 707, 102 S.Ct. at 2106. See ...