Morfin v. State of California

BENKE, J., Dissenting.

I would affirm the lower court’s ruling. While it is true that material sought by discovery need only be “reasonably calculated” to lead to the discovery of admissible evidence (Code Civ. Proc., § 2017, subd. (a)), a judge has the discretion to limit otherwise proper discovery where the burden or expense in production of requested material *818clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017, subd. (c).) A protective order may also be granted to restrict the frequency or extent of a discovery method where that method is unduly burdensome taking into account the needs of the case and the importance of the issues in the litigation. (Code Civ. Proc., § 2019, subd. (b).)

Here, the request is for raw statewide data. Both temporally and substantively, it is an exceedingly broad request. Plaintiffs have asked the state to provide the date and a “complete description” of all incidents involving any contact or collision any vehicle has had with any portion of every Department of Motor Vehicles (DMV) building in the state for the 10 years between 1977 and 1987. In addition, for every such contact or collision the DMV is asked to state whether it knows of any written or recorded statement and where such written or recorded statement can be found. Counsel at oral argument indicated there are well over 100 DMV offices throughout the state.

Despite the breadth of the discovery request, the majority concludes the information would be relevant to the design defects in the Chula Vista office because it might show a “high incidence of vehicle-building collisions at other DMV facilities” (maj. opn., ante, p. 816) from which it could be argued DMV parking lots pose a “unique risk” which must be taken into account in designing such buildings or that a higher number of inexperienced drivers use the lot and suffer from anxiety due to driver’s test and other DMV functions. I have two difficulties with the majority conclusion.

First, the raw statewide data the majority has required the state to produce will not, by itself, support the majority’s theory of liability. Rather, in order to use the raw DMV data to establish the hypothesis that all DMV buildings are subject to a “high” incidence of collisions, the Morfins are going to have to compare the DMV data with something: either an accepted engineering standard or data from incidents at non-DMV buildings. Indeed, for all the Morfins know, the DMV may have fewer incidents of building collisions than engineers should otherwise expect or other types of buildings experience. Significantly, nowhere in the record—not in support of their motion to compel nor at trial—have the Morfins suggested such an engineering standard or how they would define the class of non-DMV buildings which may be usefully compared to DMV buildings. One can only imagine the collateral disputes over engineering standards and comparable buildings the requested data will spawn on remand.

In addition to ignoring the substantial burdens the Morfins will face in making any use of the information requested, the majority fails to give any *819consideration to the cost and difficulty of producing it. (Code Civ. Proc., § 2017, subd. (c).) The Morfins’ interrogatories ask for all incidents involving all contacts with all buildings for a period beginning in 1977. In opposing the Morfins’ motion, the state submitted a declaration from a DMV official which in part states: “To investigate and compile information regarding any contact by any vehicle with any DMV building during the ten years prior to January 8, 1987, and locating any documents or recordings relating thereto, would at minimum require hundreds of man hours. Present staffing levels for current DMV operations do not readily provide for this task and it would be a hardship for the department.” Presumably the trial court relied on this unrebutted statement in denying the Morfins’ discovery motion. Quite apart from the current financial difficulties facing the public sector in this state, in light of this record I find unacceptable a disposition on appeal which, without giving any consideration to the burden it is creating, compels little more than a fishing expedition.

In considering the request for information with respect to other DMV facilities, for which there is little assurance in the record relevant evidence can be produced, and information about the Chula Vista facility, the relevance of which is difficult to dispute, the trial court ordered that the state produce information for the entire life of the Chula Vista office. I believe the balance struck by the trial court was appropriate given the issues in this case. In my opinion, it cannot be said the judge abused his discretion. I would affirm the judgment.

Respondent’s petition for review by the Supreme Court was denied April 15, 1993. Panelli, J. was of the opinion that the petition should be granted.