May 27 2009
IN THE SUPREME COURT OF THE STATE OF MONTANA
OP 09-0176
MICHAEL E. ANDERSON; GERALD BENJAMIN;
BETTY BENJAMIN; MATTHEW BURDSALL;
MIRANDA BURDSALL; JOHN F. DIETZ;
FILED
MARGARET A. DIETZ; FRANKLIN GESSAMAN; 200
MAY 2 7
KATHY E. GESSAMAN; GARY HUFFORD;
YVONNE HUFFORD; DIANE M. HUMPHREY; Ed Smith
ANDY J. JOHNSTON; JERI L. JOHNSTON; CLERK OF THE SUPREME COURT
STATE OF MONTANA
JERILEE KANTHACK; HAROLD E. KELSH;
DIANA KUHL-HO WARD; DORIS KUHL;
ERIN LANIGAN; MAT LANIGAN; TERRY LEE
LAZURE; JACQUELINE F. LEE; PAMELA A. LEE;
CAROL L. MANDERA; JASON MOHLER; JACKIE
MOHLER; MARIE RINGLE; CONNIE SMIGAJ; ORDER
ALLAN SMIGAJ; EDWARD D. WILLETT; JARED
W. YATES; and ESTHER L. YATES,
Petitioners,
V.
MONTANA FIRST JUDICIAL DISTRICT COURT,
and HONORABLE DOROTHY McCARTER,
Presiding Judge,
Respondent.
Plaintiffs and Petitioners Michael Anderson, et al. (Petitioners), by counsel, filed a
Petition for Writ of Supervisory Control, challenging three rulings made by the
Respondent Montana First Judicial District Court, the Honorable Dorothy McCarter
presiding, relative to discovery matters. On April 15, 2009, we ordered the Respondent
or her designee to file a response to the Petition for Writ of Supervisory Control. On
May 5, 2009, underlying defendants Burlington Northern Santa Fe Railway Company et
al. (BNSF) filed a response to our order as Respondent's designee.
The Petitioners are residents of Helena, Montana, who filed suit against BNSF
alleging that their real property was polluted by toxic chemicals from BNSF's railyard
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operations in Helena. In July 2008, the Petitioners served a written discovery request on
BNSF which included approximately 89 requests for production, 23 interrogatories, and
61 requests for admission. A number of these requests concerned operations at other
railyards operated by BNSF, as well as other litigation currently pending against BNSF in
both state and federal court in Montana. BNSF maintained that some of these discovery
requests were overly broad and moved the District Court for the entry of a protective
order. Following briefing, the District Court entered the protective order requested by
BNSF, to the following effect:
1. The scope of discovery in which Petitioners could engage was limited to
the Helena railyard and the environmental claims specifically alleged in the amended
complaint.
2. Inadvertent production of privileged documents in response to discovery
requests shall not be deemed a waiver of the privilege.
3. Confidential and proprietary information produced in response to discovery
requests is to be held and treated as confidential and may not be disclosed to any third
party.
The District Court did not provide any supporting rationale for its order.
In their Petition for Writ of Supervisory Control, Petitioners challenge each of
these three rulings, and argue that supervisory control is appropriate in this matter.
Petitioners argue that ruling (1) is contrary to Montana law and that the existence and
frequency of BNSF's similar past conduct at sites other than the Helena railyard is
relevant for purposes of proving liability and punitive damages, and challenging BNSF's
denial of liability concerning railyard spills of fuel and chemicals. Petitioners note that
they have the burden to prove their claims, and that producing proof that BNSF engaged
in substantially similar conduct in the past and that BNSF disregarded property rights in
doing so would support their claims.
Petitioners assert that prohibiting them from discovery of information relating to
the contamination of substantially similar sites is manifestly unjust, prevents them from
carrying their burden of proof, and is contrary to previous rulings from this Court,
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including Richardson v. State, 2006 MT 43, 331 Mont. 231, 130 P.3d 634, and Preston v.
Mont. Eighth Jud. Dist. Ct., 282 Mont. 200, 936 P.2d 814 (1997), in which we have said
that complete and thorough disclosure is required during the discovery process.
In Richardson, an elderly woman was injured in a slip and fall at a physical
education and recreation facility at the Montana College of Technology in Butte.
Richardson, ¶ 3. She filed suit against the state of Montana, and sought discovery
concerning other slip and fall injuries at that location, and the steps the State had taken to
prevent such injuries in the future. Richardson, ¶ 5. The State did not provide the
requested information in accordance with the district court's order. We held that the
State improperly concealed such discovery evidence, and that it was both relevant and
potentially admissible as evidence of prior, similar conduct on behalf of the State.
Richardson, ¶ 26.
Similarly, in Preston, a plaintiff brought a products liability suit against the
manufacturer of a pneumatic roofing nailer. Preston, 282 Mont. at 202, 936 P.2d at 815.
The plaintiff sought discovery asking for information about alternative designs of the
nailer, and injuries caused by other nailers, some of which pre-dated the one at issue.
The district court denied the discovery, and the plaintiff sought a writ of supervisory
control. We granted the writ, holding that the district court was impermissibly restricting
the scope of discovery, placing the plaintiff at a significant disadvantage. In Preston, we
specifically noted that:
Rule 26(b)(1), M.R.Civ.P., provides that any information "reasonably
calculated to lead to the discovery of admissible evidence" is discoverable.
Additionally, this Court has recognized that evidence of other injuries
caused by similar products is relevant and admissible. See Kuiper v.
Goodyear Tire & Rubber Co. (1984), 207 Mont. 37, 56, 673 P.2d 1208,
1219 ( Kuiper II); Krueger v. General Motors Corp. (1989), 240 Mont.
266, 274, 783 P.2d 1340, 1346. If evidence of other injuries is admissible
then it must be discoverable as well, since any information tending to lead
to admissible evidence is subject to discovery under Rule 26(b)(1),
M.R.Civ.P.
Preston, 282 Mont. at 207, 936 P.2d at 818.
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As to ruling (2), Petitioners maintain that BNSF has the burden of establishing
good cause for any protective order it seeks under M. R. Civ. P. 26(c), but that the
District Court's ruling essentially exempts BNSF from this requirement. Petitioners
assert that the District Court failed to review any of the documents at issue, and that its
decision was not based on a particular and specific demonstration of facts justifying a
protective order. Relying upon Kamp Implement Co., Inc. v. Ji Case Co., 630 F. Supp.
218 (D. Mont. 1986), and similar authority, Petitioners argue that the determination of
whether any particular documents are privileged, and whether the privilege has been
waived, requires a review of the actual documents at issue as well as a consideration of
the circumstances surrounding their production. Here, Petitioners assert that the District
Court's decision is an improper blanket order based on a purely hypothetical discovery
dispute not actually before it; thus, the District Court is proceeding under a mistake of
law resulting in gross injustice to the Petitioners.
With respect to ruling (3), the Petitioners advance a similar argument, asserting
that the order is facially invalid because the District Court failed to actually review any
documents, or make any required findings, to determine whether any of the requested
information was indeed confidential or proprietary. The Petitioners argue that this ruling
improperly presumes the confidentiality of documents subject to its discovery request.
Further, Petitioners assert that this ruling shifts the burden of production onto the
Petitioners because BNSF could simply designate any documents as "confidential"
without necessarily having good cause to do so, thus forcing the Petitioners to challenge
this designation before the District Court. Petitioners argue this aspect of the District
Court's ruling is invalid under M. R. Civ. P. 26(c) and should be reversed.
BNSF urges us to deny the exercise of supervisory control in this matter. BNSF
first notes that the Sixth Judicial District Court in Park County is currently entertaining
very similar claims against BNSF and recently dealt with a nearly identical issue, issuing
a protective order under the same terms as those issued here. BNSF points out that the
plaintiffs in that case did not seek relief through a writ of supervisory control, and asserts
that the case there is proceeding "uneventfully."
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Additionally, BNSF argues that the protective order with respect to ruling (1) was
within the District Court's discretion and was necessary given the massive amount of
discovery conducted in this case already. BNSF argues that the Petitioners' discovery
requests were overly broad and unfocused, with Petitioners requesting all documents
exchanged in discovery and transcripts of all depositions taken in three other pending
cases. BNSF asserts that Petitioners' discovery requests amount to a fishing expedition
and are not narrowly tailored or reasonably calculated to lead to the discovery of
admissible evidence. BNSF maintains that the District Court's decision was based on a
careful review of the arguments of both parties and constituted an appropriate decision to
limit discovery to the railyard at issue in this case and the environmental claims
specifically alleged in the Petitioners' complaint.
Additionally, BNSF maintains that both Preston and Richardson are
distinguishable from the case at bar. In this connection, BNSF asserts that litigation
involving real property environmental contamination is vastly different from the slip and
fall and products liability issues addressed in these two cases. As stated by BNSF,
"Meteorological, geographical, environmental, geological, and operational differences
make other railyards irrelevant both as to the alleged mechanism of contamination and to
the remedies that may have been considered by BNSF or its predecessors." Instead,
BNSF argues that Petitioners' requests must at least be narrowly tailored and calculated
to lead to the discovery of admissible evidence.
With respect to ruling (2), BNSF points out that the District Court's ruling
correctly states Montana law on privilege waiver through inadvertent production.
Additionally, BNSF argues that supervisory control is not an appropriate remedy because
the District Court's ruling does not place Petitioners at a significant disadvantage in
litigating the merits of their case since the ruling is not specific as to any particular
documents, there have been no sanctions imposed on either party, and therefore no
irreparable harm has been visited upon the Petitioners. BNSF argues that the facts of this
case simply do not warrant the exercise of supervisory control.
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Finally, BNSF claims that the District Court's ruling (3) does not present any
extraordinary circumstances justifying the exercise of supervisory control. Under
M. R. Civ. P. 26(c)(7), the District Court may issue orders protective of trade secrets, and
confidential research and business information. BNSF argues that the District Court's
ruling was within the discretion afforded it by virtue of this rule. BNSF maintains that
Petitioners' complaint that this ruling shifts the burden of challenging a potential
designation of produced information as "confidential" or "proprietary" is both vague and
hypothetical and falls short of the standard required for this Court to exercise supervisory
control over this matter.
Under Article VII, § 2(2) of the Montana Constitution, this Court has supervisory
control over all other courts in this state. Supervisory control is an extraordinary remedy
which we invoke on a case-by-case basis, when a district court is proceeding under a
mistake of law, causing a gross injustice for which the normal appeal process does not
constitute an adequate remedy. IC. v. Eleventh Jud. Dist. Ct., 2008 MT 358, ¶ 12, 346
Mont. 357, 197 P.3d 907.
We conclude that supervisory control is appropriate in the instant case because the
District Court is proceeding under a mistake of law which causes gross injustice to the
Petitioners by placing them at a significant disadvantage in litigating this case, and that
appeal would be an inadequate remedy. See Preston, 282 Mont. at 206, 936 P.2d at 818.
Thus, we accept supervisory control and remand this matter to the District Court with
instructions to reconsider its decision in a manner consistent with this Order.
First, we consider ruling (1). One of the inherent purposes of discovery is to
assure "the mutual knowledge of all relevant facts gathered by both parties which are
essential to proper litigation." Richardson, ¶ 22. For instance, M. R. Civ. P. 26(b)(1)
states "[i]t is not 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." In Richardson, we held that " '[e]vidence of prior, similar
accidents can have significant probative force bearing upon the question of the
reasonableness of defendant's conduct.' " Richardson, ¶ 26 (quoting Kissock v. Butte
Ell
Convalescent Cntr., 1999 MT 322, ¶ 16, 297 Mont. 307, 992 P.2d 1271). In addition, we
noted in Preston that we have "recognized a strong public policy in permitting broad
discovery concerning defective and dangerous products to promote the public safety."
Preston, 282 Mont. at 207. In that the claims before us center upon the release of toxic
contaminants, this public policy applies here.
The District Court's order contravenes this Court's well-recognized public policy
in favor of broad discovery, and forecloses discovery of any prior similar conduct of
BNSF which might indeed be relevant or probative of the liability and punitive damage
issues in the instant case. At the same time, however, we agree with BNSF that some of
the Petitioner's discovery requests are overly broad and that the District Court must be
able to exert administrative control over discovery to ensure that pre-trial and trial
proceedings move forward in an orderly manner.
While we have many times affirmed the general principle that evidence of prior
similar accidents can have relevance in a succeeding action, because of the complexity
involved in Petitioners' claims, the question of whether a former accident or incident at a
BNSF railyard in Montana constitutes "similar conduct" relative to the claims at bar is
not readily answerable. In this regard, BNSF is correct in noting that this case is factually
dissimilar from previous cases applying this principle such as Richardson and Preston.
In Richardson, it was a relatively simple matter to require the owner of the building to
produce evidence of protective measures it had taken to prevent slip and fall injuries at
that very facility. In Preston, likewise, it was straightforward to conclude that the
plaintiff was entitled to discovery concerning similar models and designs of the nailer, as
that would shed light on whether the manufacturer knew the nailer at issue in the case
would raise a high probability of injury. Preston, 282 Mont. at 209, 936 P.2d at 819.
Again, we are dealing at this juncture with what is discoverable, not what is
admissible. As we stated in Preston, discovery requests should be construed broadly "in
favor of disclosing any information tending to lead to admissible evidence." Preston,
282 Mont. at 208. Based upon the foregoing, and appreciating the concerns raised by
both parties, we conclude that on remand, the parties shall meet and attempt in good faith
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to sort through the discovery requests in question with a view toward determining which
activities at the other railyards can be fairly and truly categorized as—in Petitioners'
words—"similar past conduct," and which information will truly lead to admissible
evidence. In addition, to the extent Petitioners may already have possession of some of
the requested information from other sources, they shall disclose this fact to Respondents
and redact requests for such information from their discovery requests. Once the parties
have in good faith sorted through the discovery requests in this fashion, they may then
seek District Court direction only if necessary and only with respect to that information
upon which they genuinely and in good faith cannot agree.' The parties are strongly
urged to sort this out between them as comprehensively as possible.
Next we turn to ruling (2). Under M. R. Civ. P. 26(c), a district court may issue a
protective order upon a showing of good cause. The party seeking the protective order
must show that the requested discovery is privileged. See Kamp Implement Co., 630 F.
Supp. at 219-20; Preston, 282 Mont. at 205, 936 P.2d at 817 (discussing Kuiper v.
District Court, 193 Mont. 452, 632 P.2d 694 (1981)). Here, there are no documents in
dispute, so the District Court is not yet in a position to determine whether the privilege
applies. While the District Court does have authority to control the timing, cost, and
execution parameters associated with discovery, the District Court may not issue a
blanket order classifying documents as privileged without conducting any review.
As a legal matter, BNSF is correct in noting that inadvertent production of
material in discovery does not, ipso facto, constitute a waiver of the privilege. If BNSF
inadvertently produces any privileged documents and then seeks to bar their use based on
privilege, and the Petitioners disagree that the documents fall within the privilege, then
the District Court can review the disputed documents and issue a ruling. The parties
themselves should be able to come to an agreement on such matters and keep the amount
1
In this connection, the parties themselves may stipulate to a general definition of
whether a railyard in Montana is substantially similar, or similarly situated, to the Helena
railyard in light of the Petitioners' claims. See e.g. Raytheon Aircraft Corp. v. United
States, 2006 WL 2570545 (D. Kan. 2006).
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of disputed documents to a minimum. However, the District Court's ruling (2) as it
stands is premature to the extent it can be construed to presume the privileged nature of
produced documents without any review or inspection, thus defeating the "good cause"
requirement for a protective order in M. R. Civ. P. 26(c).
Ruling (3) suffers from a similar concern. BNSF may seek a protective order with
respect to any particular information, or possibly even with respect to a whole class of
documents, which it believes constitutes confidential or proprietary information.
However, it must demonstrate good cause for the protective order. Ruling (3) in its
present form is unenforceable for the simple reason that it appears to place the
confidentiality determination in the hands of BNSF, instead of requiring BNSF to show
good cause for a protective order under M. R. Civ. P. 26(c). Accordingly,
IT IS ORDERED that the Petition for Writ of Supervisory Control is GRANTED.
The parties are directed to meet and attempt in good faith to resolve the parameters of
their discovery disputes, as herein set forth before, and preferably instead of, involving
the District Court further in their discovery dispute.
IT IS FURTHER ORDERED that, to the extent the District Court's order is
construed as a prospective blanket protective order, it is VACATED. The court may
issue future protective orders relating to privileged, confidential, or proprietary
information, upon a showing of good cause by the party seeking the order, in conformity
with M. R. Civ. P. 26(c).
IT IS FURTHER ORDERED that the Clerk of this Court serve a copy of this
Order upon all counsel of record and upon the Honorable Dorothy McCarter, Montana
First Judicial District Court, under Cause No. ADV-2008- 101.
DATED this day of May, 2009.
\k- &AC
Justices
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