State ex rel. Ford Motor Co. v. Messina

• Decision Date: 09 April 2002
• Docket Number: No. SC 83933.,SC 83933.
• Citation: 71 S.W.3d 602
• Parties: STATE ex rel. FORD MOTOR COMPANY, Relator, v. The Honorable Edith L. MESSINA, Circuit Court of Jackson County, Respondent.
• Court: Missouri Supreme Court

71 S.W.3d 602

STATE ex rel. FORD MOTOR COMPANY, Relator, v. The Honorable Edith L. MESSINA, Circuit Court of Jackson County, Respondent.

No. SC 83933.

Supreme Court of Missouri, En Banc.

April 9, 2002.

Robert T. Adams, Paul A. Williams, Douglas W. Robinson, John F. Murphy, Kansas City, Andrew Ashworth, Vaughn Crawford, Tucson, AZ, for Relator.

Randy W. James, Aaron N. Woods, Lisa C. Beckley, Lee's Summit, Douglas R. Horn, Independence, Randall E. Hendricks, William D. Beil, Jason M. Hans, Kansas City, for Respondent.

Jordan B. Cherrick, Jeffrey R. Fink, St. Louis, Hugh F. Young, Jr., Reston Virginia, Evan A. Douthit, R. Douglas Gentile, Randall L. Rhodes, Kansas City, Steve Garner, The Strong Law Firm, Robert Palmer, Springfield, for Amicus Curiae.

DUANE BENTON, Judge.

In the circuit court, plaintiffs have sought depositions of five executives of Ford Motor Company. The respondent judge denied Ford's motion for a protective order, or to stay and quash the depositions. Ford seeks extraordinary relief. This Court issued a preliminary writ of prohibition, now made absolute, as modified. Mo. Const. art. V, sec. 4.

I.

Between 1979 and 1984, Ford developed the "Bronco II" vehicle and equipped it with tires from Continental General Tire Company. In 1997, plaintiffs were injured, allegedly when their 1987 Bronco II went out of control due to a sudden tire-tread separation. Plaintiffs sued Ford for defective design and manufacture of the 1987 Bronco II, failure to warn and instruct of dangers, and sale of the defective Bronco II and Continental tires. Plaintiffs seek punitive damages.

During discovery, Ford produced depositions and other discovery from prior Bronco II cases. Plaintiffs then noticed depositions of four top Ford employees: Jacques Nasser, President and Chief Executive Officer; Thomas D. Baughman, Executive Director, Truck, North American Truck Consumer Business Group; Ernest S. Grush, Corporate Technical Specialist Environmental & Safety Engineering; and John M. Rintamaki, Group Vice President and Chief of Staff. Plaintiffs noticed the depositions for Kansas City, but the parties later agreed to take them (if at all) at Ford's headquarters in Michigan.

Ford requested that plaintiffs specify "the discoverable subject matter" because Ford could not "conceive of any discoverable information which could not be obtained through less burdensome and obtrusive means." Ford suggested that plaintiffs depose engineers, instead of the CEO and other high-level employees. Plaintiffs immediately responded:

Your statement that there are engineers at Ford who have knowledge but "who are not the CEO or in similar high-level positions" is the very reason that I want to take the depositions of these gentlemen. I believe that we are entitled to have the testimony of high-level management personnel who are empowered with the decision making responsibility on the kinds of product defect issues that are central to our case.

Throughout this discovery dispute, plaintiffs stress that they wish to inquire about Ford's current conduct, in order to support their claim for punitive damages. Specifically, plaintiffs want to ask about tread-separation problems with other Ford products—the 1991-2001 "Explorers"— equipped with Firestone tires. In 2000, Firestone recalled some of these tires; in 2001, Ford expanded the recall. By deposing the people "out front," plaintiffs would contrast Ford's recall of the Explorers's tires, with Ford's failure to recall the 1987 Bronco II or its tires.

Ford moved to protect its "apex" employees from annoyance, embarrassment, oppression, and undue burden and expense. Rule 56.01(c). Nasser, Baughman, and Rintamaki—but not Grush submitted affidavits asserting no personal involvement in designing and developing the Bronco II, or selecting its tires.

The parties briefed the motion, and orally argued it before the circuit court. The respondent judge ordered the depositions taken the following week. The judge noted that lower-level employees had been deposed in prior Bronco II cases, the trial date was imminent, and the deponents may have discoverable information. Ford requested reconsideration and a stay, which were denied.

II.

Discovery allows access to relevant, non-privileged information, while minimizing undue expense and burden. State ex rel. Plank v. Koehr, 831 S.W.2d 926, 927 (Mo. banc 1992); State ex rel. Gamble Constr. Co. v. Carroll, 408 S.W.2d 34, 38 (Mo. banc 1966). Discovery should be conducted on a "level playing field," without affording either side a tactical advantage. Plank, 831 S.W.2d at 929; State ex rel. Pitts v. Roberts, 857 S.W.2d 200, 201-02 (Mo. banc 1993). "The discovery process was not designed to be a scorched earth battlefield upon which the rights of the litigants and the efficiency of the justice system should be sacrificed to mindless overzealous representation of plaintiffs and defendants." State ex rel. Madlock v. O'Malley, 8 S.W.3d 890, 891 (Mo. banc 1999).

Corporations act only through natural persons. Pitts, 857 S.W.2d at 201-02 & n. 2. Rank-and-file employees perform most tasks, while top-level employees are responsible for coordination and oversight. See, e.g., secs. 351.310, 351.360 RSMo 2000.

In Plank, this Court noted that a party may be disadvantaged when seeking to depose an organization, due to the difficulty of knowing which natural persons speak for it. Plank, 831 S.W.2d at 929. To put organizations and natural persons on equal footing, an organization must provide a person whose testimony binds it, if so requested. Rule 57.03(b)(4); Plank, 831 S.W.2d at 929.

This case presents the converse: disadvantage to an organization if its top-level employees are deposed frequently and unnecessarily. Such top-level depositions may be annoying, burdensome, expensive, and oppressive. Fogelbach v. Director of Revenue, 731 S.W.2d 512, 513 (Mo.App.1987).

This annoyance, burden, and expense may be unnecessary. State ex rel. Woytus v. Ryan, 776 S.W.2d 389, 394 (Mo. banc 1989); State ex rel. Anheuser v. Nolan, 692 S.W.2d 325, 328 (Mo.App.1985). Persons lower in the organization may have the same or better information. Fogelbach, 731 S.W.2d at 513. Other methods of discovery may make a top-level deposition unnecessary. E.g., Rule 57.03(b)(4). See also Woytus, 776 S.W.2d at 394.

Opposing litigants may depose top-level executives who have discoverable information. Rules 56.01(b)(1), 57.03(a). Even so, an opposing litigant may not use the threat of a burdensome deposition as a bargaining chip or annoying tactic. See Fogelbach, 731 S.W.2d at 513.

California and Texas attempt to resolve this conflict by an "apex" rule: An officer at the apex of the corporate hierarchy cannot be deposed unless the employee has special or unique knowledge, or the information is first pursued by less intrusive means. See, e.g., Liberty Mut. Ins Co. v. Superior Court of San Mateo County, 10 Cal.App.4th 1282, 13 Cal.Rptr.2d 363, 367-68 (1992); Crown Cent. Petroleum Corp. v. Garcia, 904 S.W.2d 125, 128 (Tex.1995).

This Court declines to adopt an "apex" rule. Instead, depositions of top-level decision-makers should proceed in accordance with Rules 56.01(b)(1) and 56.01(c).

A top-level employee—like anyone else—should not be deposed unless the information sought is relevant, or reasonably calculated to lead to the discovery of admissible information. Rule 56.01(b)(1); State ex rel. Wilfong v. Schaeperkoetter, 933 S.W.2d 407, 410 (Mo. banc 1996). The party seeking discovery has the burden of proving discoverability. Id.

Even if the top-level employee has discoverable information, the organization or its top-level employee may seek a protective order. Rule 56.01(c). The party or person opposing discovery has the burden of showing "good cause" to limit discovery. Id.

A protective order should issue if annoyance, oppression, and undue burden and expense outweigh the need for discovery. Rule 56.01(c); Woytus, 776 S.W.2d at 391; Anheuser, 692 S.W.2d at 328. For top-level employee depositions, the court should consider: whether other methods of discovery have been pursued; the proponent's need for discovery by top-level deposition; and the burden, expense, annoyance, and oppression to the organization and the proposed deponent. See Anheuser, 692 S.W.2d at 328.

III.

Prohibition is the proper remedy for an abuse of discretion during discovery. Plank, 831 S.W.2d at 927-28. Trial judges have broad discretion in administering the rules of discovery. Rule 56.01(d); State ex rel. Crowden v. Dandurand, 970 S.W.2d 340, 343 (Mo. banc 1998). The trial court abuses discretion if its order is clearly against the logic of the circumstances, is arbitrary and unreasonable, and indicates a lack of careful consideration. Giddens v. Kansas City S. Ry. Co., 29 S.W.3d 813, 819 (Mo. banc 2000). The writ petitioner (here Ford) has the burden to prove abuse of discretion. State ex rel. Health Midwest Dev. Group, Inc. v. Daugherty, 965 S.W.2d 841, 844 (Mo. banc 1998).

Before both the circuit court and this Court, Ford claims the depositions were not reasonably calculated to lead to the discovery of admissible evidence. At the motion hearing, however, Ford orally conceded relevance for the purposes of discovery. Accordingly, the circuit court did not abuse discretion in finding the proposed deponents had discoverable information.

Next, Ford included Grush among the employees it seeks to protect, but at the same time offers him as an alternative deponent to Nasser, Baughman, and Rintamaki. Ford thus concedes that Grush's deposition is proper.

Also, Nasser's tenure as CEO and President ended while this writ was pending. Since he is no longer a top-level Ford employee, Ford's arguments against his deposition are moot. State ex rel. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo. banc 2001).

As to Baughman and Rintamaki, Ford has shown good cause for a protective order, to date. Rule 56.01(c). Ford showed that plaint...