[Cite as Baker v. Cooper Farms Cooked Meats, 2009-Ohio-3320.]




                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                             VAN WERT COUNTY




RUSSELL BAKER,

        PLAINTIFF-APPELLEE,                                     CASE NO. 15-09-03

        v.

COOPER FARMS COOKED MEATS,                                      OPINION

        DEFENDANT-APPELLANT.




               Appeal from Van Wert County Common Pleas Court
                          Trial Court No. CV08-12-616

                                    Judgment Affirmed

                             Date of Decision: July 6, 2009




APPEARANCES:

        Sara L. Rose and Mary Posciotta for Appellant

        Eric A. Mertz for Appellee
Case No. 15-09-03


SHAW, J.

         {¶1} Although originally placed on our accelerated calendar, we have

elected, pursuant to Local Rule 12(5), to issue a full opinion in lieu of a judgment

entry.

         {¶2} Defendant-Appellant Cooper Farms Cooked Meats (“Cooper

Farms”) appeals from the February 9, 2009 Entry of the Court of Common Pleas,

Van Wert County, Ohio granting the Petition for Discovery of Plaintiff-Appellee

Russell Baker (“Baker”).

         {¶3} On December 3, 2008 Baker filed a “Petition for Discovery,

Pursuant to Civ. R. 34(D) and O.R.C. §2317.48.” In his petition Baker alleged

that he was injured on October 6, 2008 while working in Cooper Farms’ factory

by a “Rapid Pack One” machine. Baker further alleged that there may be a

products liability claim and intentional tort claim related to the injury. However,

Baker claimed that he had insufficient information under which to pursue these

possible claims; and that his requests for information from Cooper Farms had been

denied.

         {¶4} Baker requested that his counsel be provided with all statements

made surrounding the Rapid Pack One machine or his injury, as well as any

pictures. Additionally, Baker requested an order allowing him and his attorneys

and experts to see, inspect, examine, test, photograph, and/or videotape the



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Case No. 15-09-03


machine or assembly line on which he was injured.                              Backer also attached

interrogatories and a request for the production of documents to his petition.

         {¶5} On December 22, 2008 Cooper Farms filed a motion to dismiss or

alternatively, a motion for judgment on the pleadings. Baker responded to the

motion to dismiss/motion for judgment on the pleading on January 14, 2009. On

February 9, 2009 the trial court granted Baker’s petition for discovery.

         {¶6} Cooper Farms now appeals, asserting a single assignment of error.1

                      ASSIGNMENT OF ERROR
        THE TRIAL COURT ERRED IN GRANTING PLAINTIFF-
        APPELLEE [RUSSELL BAKER’S] PETITION FOR
        DISCOVERY IN THAT IT ORDERED [COOPER FARMS]
        TO OPEN UP ITS PREMISES TO BAKER, HIS ATTORNEYS
        AND HIS AGENTS, FOR INSPECTION, EXAMINATION,
        TESTING, PHOTOGRAPHING, AND/OR VIDEOTAPING
        AND ORDERED [COOPER FARMS] TO RESPOND TO 18
        INTERROGATORIES AND REQUESTS FOR PRODUCTION
        OF DOCUMENTS WHEN (A) THE VAST MAJORITY OF
        THE DISCOVERY IS NOT NECESSARY TO ASCERTAIN
        THE IDENTITY OF A POTENTIAL ADVERSE PARTY; (B)
        BAKER WAS NOT OTHERWISE UNABLE TO BRING THE
        COMTEMPLATED ACTIONS; AND (C) BAKER DID NOT
        MAKE    REASONABLE      EFFORTS    TO    OBTAIN
        VOLUNTARILY THE INFORMATION FROM COOPER.

         {¶7} In its first assignment of error, Cooper Farms argues that the trial

court erred in granting Baker’s discovery petition. This Court reviews discovery


1
  We note that in response to the filing of this appeal, Baker filed a motion to dismiss arguing that the
February 9, 2009 order was not a final appealable order. However, this Court determined, in a judgment
Entry issued April 20, 2009, that “[t]he trial court’s judgment granting the petition to obtain discovery,
instituted as an independent action pursuant to R.C. 2317.48 and Civ. R. 34(D), is a ‘final order’ subject to
review on appeal.”


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Case No. 15-09-03


issues under an abuse of discretion standard. State v. Ross, 3rd Dist. No. 1-08-47,

2009-Ohio-188, at ¶11; Geggie v. Cooper Tire & Rubber Co., 3d Dist. No. 5-05-

01, 2005-Ohio-4750, ¶ 25. An abuse of discretion constitutes more than an error

of law or judgment and implies that the trial court acted unreasonably, arbitrarily,

or unconscionably. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450

N.E.2d 1140. When applying the abuse of discretion standard, a reviewing court

may not simply substitute its judgment for that of the trial court. Id.

       {¶8} Actions for discovery are governed by R.C. 2317.48 which provides

as follows:

       When a person claiming to have a cause of action or a defense to
       an action commenced against him, without the discovery of a
       fact from the adverse party, is unable to file his complaint or
       answer, he may bring an action for discovery, setting forth in his
       complaint in the action for discovery the necessity and the
       grounds for the action, with any interrogatories relating to the
       subject matter of the discovery that are necessary to procure the
       discovery sought. Unless a motion to dismiss the action is filed
       under Civil Rule 12, the complaint shall be fully and directly
       answered under oath by the defendant. Upon the final
       disposition of the action, the costs of the action shall be taxed in
       the manner the court deems equitable.

       {¶9} Additionally, Civ. R. 34(D) provides the proper procedure for an

action for discovery filed prior to the filing of an action as follows:

       (1)    Subject to the scope of discovery provisions of Civ. R.
       26(B) and 45(F), a person who claims to have a potential cause
       of action may file a petition to obtain discovery as provided in
       this rule. Prior to filing a petition for discovery, the person
       seeking discovery shall make reasonable efforts to obtain


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Case No. 15-09-03


      voluntarily the information from the person from whom the
      discovery is sought. The petition shall be captioned in the name
      of the person seeking discovery and be filed in the court of
      common pleas in the county in which the person from whom the
      discovery is sought resides, the person's principal place of
      business is located, or the potential action may be filed. The
      petition shall include all of the following:

      (a) A statement of the subject matter of the petitioner's potential
      cause of action and the petitioner's interest in the potential cause
      of action;

      (b) A statement of the efforts made by the petitioner to obtain
      voluntarily the information from the person from whom the
      discovery is sought;

      (c) A statement or description of the information sought to be
      discovered with reasonable particularity;

      (d) The names and addresses, if known, of any person the
      petitioner expects will be an adverse party in the potential
      action;

      (e) A request that the court issue an order authorizing the
      petitioner to obtain the discovery.

      (2) The petition shall be served upon the person from whom
      discovery is sought and, if known, any person the petitioner
      expects will be an adverse party in the potential action, by one of
      the methods provided in these rules for service of summons.

      (3) The court shall issue an order authorizing the petitioner to
      obtain the requested discovery if the court finds all of the
      following:

      (a) The discovery is necessary to ascertain the identity of a
      potential adverse party;

      (b) The petitioner is otherwise unable to bring the contemplated
      action;


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Case No. 15-09-03



      (c) The petitioner made reasonable efforts to obtain voluntarily
      the information from the person from whom the discovery is
      sought.

       {¶10} A plaintiff requesting pre-complaint discovery must comply with the

requirements of Civ. R. 34(D). See Huge v. Ford Motor Co. 155 Ohio App.3d

730, 733, 803 N.E.2d 859, 2004-Ohio-232

       {¶11} An action for discovery is to be used only to uncover facts necessary

for pleading, not to gather proof to support a claim or to determine whether a

cause of action exists. Huge, 155 Ohio App.3d at 733 citing Marsalis v. Wilson,

149 Ohio App.3d 637, 778 N.E.2d 612, 2002-Ohio-5534. R.C. 2317.48 “occupies

a small niche between an unacceptable ‘fishing expedition’ and a short and plain

statement of a complaint or defense filed pursuant to the Civil Rules.” Poulos v.

Parker Sweeper Co. (1989), 44 Ohio St.3d 124, 127, 541 N.E.2d 1031. In other

words, R.C. 2317.48 “provide[s] a ‘satisfactory middle course’ for litigants who

require additional facts in order to sufficiently file a valid complaint, but who

already have enough factual basis for their assertions that the discovery process

would not be turned into a ‘fishing expedition.’” Fasteners for Retail v. Peck (Apr.

3, 1997), Cuyahoga App. No. 70818 citing Poulos, 44 Ohio St.3d at 126.

       {¶12} In the present case, in evaluating Baker’s petition, the trial court

made the following observation about the evolution of Civ. R. 34(D):




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Case No. 15-09-03


      According to the Staff Notes of Civil 34, the 1993 amendment is
      of particular benefit in an industrial accident case where the
      injured worker will be able to inspect and copy documents that
      can identify the manufacturer of the injury-causing machine.

       {¶13} Moreover, the trial court made the following findings:

      The court finds that the plaintiff satisfied all of the elements
      required by Rule 34(D). Here, the plaintiff (1) does not know
      the identity of the defendant, (2) the purpose of his discovery
      request is to investigate a possible products liability claim due to
      the injury plaintiff suffered while at work, (3) the plaintiff
      documented attempts to obtain information voluntarily from the
      defendant, (4) his request includes the names of potential
      adverse parties, and (5) the plaintiff requests that the court issue
      an order to allow plaintiff to obtain discovery.

       {¶14} Cooper Farms makes three arguments as to why Baker was not

entitled to the requested discovery. First, Cooper Farms argues that Baker does

not need discovery to ascertain the identities of adverse parties. However, Baker

claims he may have a products liability action concerning the Rapid Pack One

machine. Without discovery, he has no way of knowing who to bring suit against

from a myriad of potential parties including: Cooper Farms, a main manufacturer,

a parts manufacturer, a maintenance person, etc. Discovery is vital to allow

Cooper to ascertain the correct party.

       {¶15} Second, Cooper Farms argues that Baker does not need the requested

discovery to bring the contemplated action. However, Ohio Courts have held that

“[u]ltimately, [Civ. R. 34(D)] acts as a safeguard against charges that the plaintiff

filed a frivolous lawsuit in a case where the wrongdoer or a third party has the


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Case No. 15-09-03


ability to hide the facts needed by the plaintiff to determine who is the wrongdoer

and exactly what wrong occurred.” See Committee Notes to Civ.R. 34(D). Benner

v. Walker Ambulance Co. (1997), 118 Ohio App.3d 341, 692 N.E.2d 1053. Here,

the requested discovery is necessary to ascertain who the wrongdoer is and exactly

what occurred.

      {¶16} Third, Cooper Farms argues that Baker did not make reasonable

efforts to obtain discovery. However, Baker’s counsel sent a letter to counsel for

Cooper Farms, to which Cooper Farm’s counsel replied, rejecting the request and

stating that Baker could have the requested documents if he was willing to sign a

release against Cooper Farms. The trial court found this to be a reasonable effort,

and this Court agrees.

      {¶17} Finally, Cooper Farms argues that Baker did not include sufficient

underlying facts in his petition to show his reason to believe he had a cause of

action. However, we disagree with this conclusion. In his petition, Baker stated

that he may have a products liability claim and an intentional tort claim. In

support of his claim, as previously recognized, Baker stated that he was injured

using the Rapid Pack One machine. However, Baker noted that without the

requested discovery, he was unable to ascertain who these claims would be against

and, whether both claims existed. Therefore, we note that Baker was not trying to

determine whether a cause of action existed, but was instead trying to seek facts



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with which to plead a cause of action he already believed existed, as required in

Smith v. Baumgartner, 6th Dist. Nos. OT-01-018, OT-01-014, 2002-Ohio-232.

       {¶18} Therefore, this Court cannot find that the trial court abused its

discretion in ordering discovery, despite Cooper Farms’ assertions to the contrary.

Cooper Farms’ assignment of error is overruled.

       {¶19} Based on the foregoing, the February 9, 2009 Entry of the Court of

Common Pleas, Van Wert County, Ohio granting Baker’s Petition for Discovery is

affirmed.

                                                               Judgment Affirmed

WILLAMOWSKI, J., concurs.

/jlr



ROGERS, J., Dissenting.

       {¶20} I respectfully dissent from the opinion of the majority. R.C. 2317.48

provides that one may file a petition for discovery prior to filing a complaint, but

limits the circumstances under which this may be done. Civ.R. 34(D) provides for

the procedures in initiating the petition.    However, because the authority for

initiating such an action is derived solely from the statute, the petitioner must

comply fully with that statute, which provides:

       When a person claiming to have a cause of action or a defense to
       an action commenced against him, without the discovery of a


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       fact from the adverse party, is unable to file his complaint or
       answer, he may bring an action for discovery, setting forth in his
       complaint in the action for discovery the necessity and the
       grounds for the action, with any interrogatories relating to the
       subject matter of the discovery that are necessary to procure the
       discovery sought. Unless a motion to dismiss the action is filed
       under Civil Rule 12, the complaint shall be fully and directly
       answered under oath by the defendant. Upon the final
       disposition of the action, the costs of the action shall be taxed in
       the manner the court deems equitable.

R.C. 2317.48.

       {¶21} In this case, Appellee failed to make reasonable efforts to obtain the

discovery voluntarily, his request for discovery was overbroad, and his petition

failed to assert that he had a cause of action (claim) and the grounds for that claim.

       {¶22} In Bridgestone/Firestone v. Hankook Tire Mfg. Co. (1996), 116 Ohio

App. 3d 228, the Ninth Appellate District reversed the trial court’s denial of a

motion to dismiss because the petitioner alleged that it had “reason to believe” that

there was a cause of action and found that the petition “failed to aver sufficient

facts to reveal a ‘potential cause of action’ * * *.” Id. at 232. Additionally, the

court found that:

       The Ohio Supreme Court, in Poulos v. Parker Sweeper Co.
       (1989), 44 Ohio St.3d 124, 541 N.E.2d 1031, considered the
       application of R.C. 2317.48. The plaintiff in that action claimed
       to be part owner and developer of a prototype sweeper for use in
       movie theaters. He averred that the defendant, the other part
       owner and developer, had refused to recognize his rights in the
       prototype, “be they patent, contract, or inventor's rights.” Id. at
       124, 541 N.E.2d at 1032. He filed an action pursuant to R.C.
       2317.48 to obtain information that would let him determine “the


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Case No. 15-09-03


       status of the product and his possible rights.” Id. at 124, 541
       N.E.2d at 1032. The Supreme Court explained that R.C. 2317.48
       “occupies a small niche between an unacceptable ‘fishing
       expedition’ and a short and plain statement of a complaint or a
       defense filed pursuant to the Civil Rules.” Id. at 127, 541 N.E.2d
       at 1034. The plaintiff in Poulos had averred sufficient facts to
       reveal a “potential cause of action in contract.” Id. at 128, 541
       N.E.2d at 1035. Accordingly, the Supreme Court concluded that
       he was entitled to answers to interrogatories “limited and
       directed toward only those facts necessary to draft a complaint.”
       Id. at 127, 541 N.E.2d at 1035.

       In this case, Bridgestone/Firestone failed to aver sufficient facts
       to reveal a “potential cause of action” against either defendant.
       Although it averred that it had “reason to believe” that
       Hankook had obtained confidential, proprietary information
       belonging to it and “reason to believe” that Kennedy had
       disclosed confidential, proprietary trade secret information
       belonging to it, those averments were not sufficient for purposes
       of R.C. 2317.48. In order to fit into the small niche of prefiling
       discovery allowed by that statute, the complaint would have had
       to include the underlying facts and circumstances constituting
       Bridgestone/Firestone's reason to believe.         Further, those
       underlying facts would have had to reveal that
       Bridgestone/Firestone had causes of action against Hankook and
       Kennedy.      Apparently, Bridgestone/Firestone's reasons to
       believe did not reveal that it had a cause of action against either
       Hankook or Kennedy because, according to the averments of its
       complaints, it was not seeking discovery needed to draft a
       complaint based on a claimed cause of action, but rather was
       seeking discovery to determine whether it had a cause of action
       against either under any of three alternative legal theories.

Id. at 231-232. See, also, National City Bank, Northeast v. Amedia (1997), 118

Ohio App.3d 542 (holding that the complaint for discovery must contain sufficient

facts to reveal a potential cause of action).




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       {¶23} Similarly, in this case, Appellee merely alleged that he may have a

claim for product liability or an intentional tort, and stated no facts as grounds for

either potential claim.

       {¶24} Furthermore, I believe that the extent of the discovery requested was

far more than that contemplated by the statute, and that one letter requesting

grossly overbroad discovery cannot properly be characterized as a reasonable

effort to obtain the information necessary to file a complaint.

/jlr




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