Dissenting Opinion
Hunter, J.I am in full agreement with the majority only insofar as they hold that the Indiana Rules of Procedure apply to Eminent Domain proceedings. Having determined that the Rules of Procedure apply, I shall devote this dissenting opinion to what I understand to be the correct application of these Rules.
On December 10, 1969, appellee filed its complaint for condemnation. Appellants filed objections, and trial of this matter was set for January 29, 1970. On January 27, 1970, appellants filed a Motion for Continuance to enable them to complete dis*605covery. This motion was granted, and trial was set for March 31,1970. On March 9, 1970, appellants filed sixty-four written interrogatories pursuant to TR. 33. Appellee’s Motion to Deny Answers to Interrogatories, filed March 20, was based on the erroneous contention that the Indiana Rules did not apply to Eminent Domain proceedings.
The majority appears to hold that the appellants abused their discovery rights by waiting until twenty-one days before trial to submit the sixty-four interrogatories. However, this issue was not before the trial court, nor is there any evidence in the record which would indicate that the interrogatories could not have been answered within the twenty-one day period.
The majority further states that even if the denial of discovery was erroneous, the appellants were not prejudiced thereby since “all papers which were requested were tendered,” and “the questions included in the interrogatories were asked of the witness at trial.” The papers tendered, however, were tendered in response to Subpoena Duces Tecum, and were not produced until almost one month after the trial commenced. It is my contention that neither Subpoena Duces Tecum nor the opportunity to examine witnesses at trial have anything whatsoever to do with pre-trial discovery sought pursuant to TR. 33. Indeed, discovery was made available to litigants so that we might eliminate trial by “ambush.”
I am of the opinion that appellants have made a prima facie case for reversible error by establishing that they were erroneously denied discovery. There were sixty-four interrogatories submitted to appellee. There is no evidence to indicate that the information sought by the interrogatories would not have assisted appellants in the preparation of their case for trial. Moreover, there is no definitive way to assess the harm which results from the denial of the opportunity to prepare for trial. Therefore,, it is my contention that once an erroneous denial of discovery has been established, the judgment should be reserved unless it is abundantly clear from the record that the *606information sought was made available by other methods before trial.
The value of discovery is made very apparent in the case before us. Appellants were required to subpoena one Mr. Pence, an officer of the appellee corporation, to obtain his presence at trial. Mr. Pence was also required to bring certain documents held by the corporation. These documents consisted mostly of interconnection agreements that Indiana and Michigan Electric Company had with various utilities in other states. Mr. Pence was called to take the stand, and, after doing so, he promptly disclosed that he had no knowledge or understanding of the interconnection agreements in question. Mr. Pence stated that he was the Assistant Secretary and that it was his responsibility only to keep a copy of said agreements in the corporate file. Trial was then recessed from May 18, 1970 to May 21, 1970, to enable appellants to examine the documents. It was also understood that a Mr. Pletcher, an employee of the appellee corporation, would be made available for examination as he had knowledge of the matters relating to the contents of the documents. When the trial resumed, Mr. Pletcher was not called to testify. Evidently, after examining the documents, counsel for appellants must have decided that Pletcher’s testimony would have been unavailing.
I submit that this is a very difficult and burdensome way to prepare a case for trial. This was the true waste of the trial court’s time. Trial was recessed for three days so that Mr. Pletcher, who was in Canton, Ohio, on business, could be made available for trial, and then appellants “discovered” that his testimony was unnecessary.
On appeal, appellee contends that the sixty-four written interrogatories were voluminous in nature and called for detailed and technical information. Therefore, appellee argues, the trial court was justified in denying discovery as the interrogatories were submitted on a date so near to the time for trial that to require appellee to answer the voluminous interrogatories would necessitate postponement.
*607In support of this position, appellee refers us to five cases. I will limit my discussion to the two that were decided in the Twentieth Century. In Heffron v. Los Angeles Transit Lines (1959), 170 Cal. App. 2d 709, 839 P. 2d 567, it was field that to submit fifty-two (52) interrogatories some nineteen days before trial was an untimely course of action, and that it was within the discretion of the trial court to deny discovery. In Heffron, the action was commenced on November 2, 1956. A pre-trial hearing was conducted September 25, 1957, at which time both parties stated that they were ready for trial. The only discovery sought related to an examination of a bicycle. Trial was set for November 26, 1957, and at that time both parties appeared and announced that they were prepared to try the case. Due to a congested calendar, the court, on its own motion, ordered the trial continued to February 24, 1958. On February 5, 1958, the plaintiff served the fifty-two interrogatories. In our present case, the action was commenced some eighty-nine days prior to the time appellants filed the interrogatories, while in Heffron, over fifteen months had elapsed. Twice, in the Heffron case, the plaintiff had announced that he was ready for trial. These facts are simply not present in the case before us. Nor is there any evidence which indicates appellants were making a bad faith attempt to postpone or. delay the trial.
Appellee also relies on Oskar Tiedemann & Co. v. United States (Del. 1959), 172 F. Supp. 609. In Tiedemann, the Government attempted to file forty-two sets of interrogatories involving some eight thousand questions on forty-two persons, many of whom were at sea. This was done within one month of the date set for trial. In denying the attempted discovery, the court observed that the Government would not be prejudiced by the denial in that the Government already possessed full statements taken by a Court Reporter from each and every one of the forty-two witnesses involved.
The Heffron and Tiedemann decisions stand for the proposition that it is within the trial court’s discretion to deny dis*608covery when it appears that the discovery tools are being used solely to delay or postpone the trial. There is no evidence in the record which would indicate that this proposition has any application in the case at bar.
Indiana and Michigan Electric Company initiated this action. In the absence of any showing of bad faith, a party whose land has been condemned should be given every opportunity to build its defense, determine what information is necessary for its defense, and seek such information from the condemnor. Since the justification for the condemnation was based on electrical power shortages, it is not too surprising that the information sought was of a technical nature. This case presents a situation where counsel for appellants, probably substantially less acquainted with the production and transmission of electrical power than was appellee, was required to acquaint himself sufficiently with this business so that he might determine what information was necessary. More likely than not, it was much more difficult to compile the sixty-four interrogatories than it would have been to answer them.
After arguing that the interrogatories were so “voluminous and oppressive” that they could not possibly be answered in the twenty-one days remaining before trial, appellee then contends that appellants suffered no harm since they had the opportunity to examine the interconnection agreements which were produced at trial. Even if we assume, somewhat illogically, that all of the information sought by the interrogatories was contained in the interconnection agreements, and if we overlook the fact that these agreements were not produced until almost one month after the trial had commenced, it is unreasonable to conclude that the necessary information was gained during the three day trial recess. How can it be said that appellants’ counsel, totally unfamiliar with the documents produced, could extract all of this information when appellee has already wholeheartedly asserted that such information could not possibly be produced in three weeks ?
*609Under proper circumstances, discovery can be resisted. TR. 26C provides, in part, as follows:
“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. . . .” (my emphasis)
An alternative to TR. 26C is found in TR. 33A which reads, in pertinent part:
“Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. . . . The party submitting the interrogatories may move for an order under Rule 37 (A) with respect to any objection to or other failure to answer an interrogatory.”
However, these Rules were not utilized by appellee, nor is there any evidence which would indicate that appellee would have been successful had it chosen to proceed in accordance with these Rules.
Therefore, the judgment of the trial court should be reversed.
Note. — Reported in 277 N. E. 2d 589.