State ex rel. Litton Business Systems, Inc. v. Bondurant

• Decision Date: 05 May 1975
• Docket Number: No. KCD,KCD
• Citation: State ex rel. Litton Business Systems, Inc. v. Bondurant, 523 S.W.2d 587 (Mo. App. 1975)
• Parties: STATE of Missouri ex rel. LITTON BUSINESS SYSTEMS, INC., Relator, v. The Honorable Keith P. BONDURANT, Judge, Sixteenth Judicial Circuit Court of Missouri, Div. #6, Respondent. 27530.
• Court: Missouri Court of Appeals

Page 587

523 S.W.2d 587

STATE of Missouri ex rel. LITTON BUSINESS SYSTEMS, INC., Relator, v. The Honorable Keith P. BONDURANT, Judge, Sixteenth Judicial Circuit Court of Missouri, Div. #6, Respondent.

No. KCD 27530.

Missouri Court of Appeals, Kansas City District.

May 5, 1975.

William R. Fish, Knipmeyer, McCann, Fish & Smith, Kansas City, for relator.

Charles L. House, John S. Black, Swanson, Midgley, Eager, Gangwere & Thurlo, Kansas City, for respondent.

Before PRITCHARD, C.J., and SHANGLER, DIXON, SWOFFORD, WASSERSTROM, SOMERVILLE and TURNAGE, JJ.

WASSERSTROM, Judge.

Relator Litton Business Systems, Inc., filed application for a writ to prohibit the respondent trial judge from enforcing his order requiring relator to answer certain interrogatories. This court issued its preliminary rule of prohibition on September 4, 1974.

The underlying litigation before respondent was instituted by a petition of Litton Industries Credit Corporation against Broadway Motors, Inc., an automobile dealership in Kansas City, Missouri. Plaintiff seeks to recover $26,100.36 as the balance due on an agreement dated October 21, 1971, by Broadway to lease certain computer equipment, together with interest from October 21, 1972, and an attorney's fee of $5,000. The petition alleges that the lease agreement was assigned to plaintiff by relator. Broadway obtained leave to and did bring relator into case as an additional counterclaim defendant.

Broadway then filed its answer and counterclaim in which it alleges that at the time of the lease agreement relator made certain representations with respect to the equipment and that it warranted and guaranteed certain results to be obtained by Broadway from the use of this equipment. The essence of the claimed representations and warranties respected the ability of the equipment to enable Broadway to employ fewer persons; that it would perform certain business functions and produce certain records; and that the equipment, programs and technical assistance to be furnished would enable Broadway to reduce its costs and expenses. Broadway alleges that the representations were false and fraudulent and that the warranties have been breached, for which it prays actual damages of $29,310.26 and punitive damages in the amount of $60,000.

Broadway then followed up these pleadings by the filing of interrogatories, those now in dispute being as follows:

'7. For automobile dealerships cufrrently subscribing to and using Litton's accounting system, or any component thereof, please state:

(a) The name, address and telephone number of such automobile dealership.

(b) Whether such automobile dealership subscribed to Litton's LEADS program, accounts receivable program or payroll program. If all of the aforementioned programs are not leased, which programs are leased.

(c) The date when such automobile dealership entered into a lease of Litton's accounting system.

'8. For each automobile dealership subscribing to Litton's accounting system prior to October 21, 1971, please state:

(a) The name, address and telephone number of such automobile dealership.

(b) Whether such automobile dealership subscribed to Litton's LEADS program, accounts receivable program and payroll program. If all of the aforementioned programs were not leased, which programs were leased.

(c) The date upon which such automobile dealership entered into a lease of Litton's accounting system.

'9. For each automobile dealership, other than defendant, which has returned, discontinued or refused to further rent Litton's accounting system, or any part or program thereof, please state:

(a) The name, address and telephone number of such automobile dealership.

(b) Whether such dealership initially leased Litton's LEADS program, accounts receivable program, and payroll programs. If all of the aforementioned programs were not leased, which programs were leased.

(c) If the entire accounting system was not returned discontinued or refused, the components or parts thereof which were.

'13. If Litton's accounting system was tested, prior to marketing, in an automobile dealership, please state:

(a) The name, address and telephone number of such automobile dealership.

(b) Whether such automobile dealership paid a rental fee to Litton for the use of Litton's accounting system.

(c) Whether such automobile dealership received any compensation or benefits from Litton, other than the use of Litton's system.

(d) The dates of the testing period or periods.

(e) Whether every program, and every component thereof, of Litton's accounting system was tested at such dealership.

(f) If every component and program of Litton's accounting system was not tested at such dealership, please state the components and programs which were not so tested, and the reason or reason why they were not tested.

'15. Please state what improvement or changes, if any have been made, between October 21, 1971 and March 20, 1973, in the machinery, programs and sales promotional techniques concerning Litton's accounting system for automobile dealerships.

'17. Please state what defects, deficiencies, limitations or shortcomings have been discovered in Litton's accounting system for automobile dealerships between October 21, 1971 and March 20, 1973.

'18. Please list the name, address, telephone number, employer and job title of all individuals who have knowledge of defects, deficencies and shortcomings listed in the answer to Interrogatory No. 17 above.'

Relator promptly objected to those interrogatories for the reason that 'they are too broad and all inclusive and seek information not relevant or material to the issues involved in this case, nor are they designed to reasonably lead to the discovery of admissible evidence.' Those objections were overruled by respondent on May 23, 1974, subject, however, to the following provision: 'The Court will duly consider any motions for protective orders that Litton Automated Business Systems, Inc. may file regarding the information sought by these interrogatories.'

Pursuant to that invitation, relator did file a motion for protective order. The motion made reference to the great expense which it would necessarily incur in compiling the information and preparing answers to interrogatories. The protective measures requested by relator in its motion were: 1) that relator be permitted to make available to Broadway the files from which the information sought could be obtained; or alternatively, 2) that Broadway be required to post a bond to assure relator of recovering the cost of answering interrogatories in the event the court should require Broadway to pay those costs as part of accumulated court costs upon completion of the case; and 3) that Broadway be prohibited from making any contact with relator's customers who would be disclosed by the answers to interrogatories.

In support of its claim for the protective order, relator relied upon an affidavit of Paul J. Olivo, its Division Counsel. The gist of Olivo's affidavit was that the cost of answering the interrogatories in question would be an estimated $28,310. Olivo explained the large size of this estimated cost on the ground that there is no central source from which the answers to those interrogatories can be obtained; that the requested information 'is not categorized in the manner in which it is being sought;' and that in order to compile the data requested records would have to be searched in each of defendant's 60 district offices. Olivo further stated that a sample survey taken by him indicated that a questionnaire would have to be developed from a central location to be sent to each of the 60 district offices at a cost of $110; that each of the district offices would have to assign people to review files and break down and study the records available at a cost of $470 per district office for a total cost for all the district offices of $28,200. Olivo further stated that complaints by customers respecting new computer installations are not kept by relator in the course of business, that analyses of such complaints might be required by expert programmers and could be developed only by personal contact type of effort and that the cost of this latter work is not reflected in the $28,310 cost estimate. Finally, Olivo set forth that relator had developed its customers only after years of concentrated sales effort, that the discovery of this list by interrogatories would greatly benefit Litton's competition, and that contact by Broadway with relator's customers would of necessity disclose the present litigation which would disturb the customer relationship and cause irreparable damage to relator.

By order dated August 2, 1974, respondent overruled the motion for protective order, stating: 'The Court, having duly considered said motion, finds same to be without merit and further, that the relief sought is highly irregular and totally beyond the scope of protection contemplated by Civil Rule 57.01(c).' Relator was ordered to file answers no later than August 14, 1974, with a statement by the court that, '(u)pon failure to comply with this order, the Court will entertain an appropriate motion by defendant.'

On this application for prohibition against enforcement of the latter order, relator argues that respondent exceeded his jurisdiction for three reasons: a) because the interrogatories were irrelevant; b) because the interrogatories were oppressive and would require undue expense and effort to answer them; and c) because respondent refused the motion for a protective order. The first and third of these assignments are easily disposed of and will, therefore, be cleared away before addressing the crucial second point.

I. RELEVANCY

At the time of respondent's ruling, the scope of interrogatories was governed by former Rules 56.01 and 57.01(b), V.A.M.R. The counterpart new Rules 57.01(b) and 56.01(b)(1) set forth substantially identical provisions. Under those rules interrogatories may properly...