Daniels v. Allen Industries, Inc ( 1974 )

M. S. Coleman, J.

(concurring). I agree that it is within the trial judge’s discretion to grant broad discovery for "cause shown”. I also agree that the exercise of this discretion is not limited to documents or objects admissible in evidence and so I concur with the final result of the majority opinion.

Two aspects of this case are of concern to me, but one is not before the Court — the current proliferation of class actions. The other matter of concern is a policy which encourages an industry to assess and control its own pollution problems and then cause the result of its expenditures and labors to be turned like a knife against itself.

There is more than a likelihood that our decision will "heat up” class actions and "chill” good faith efforts to control pollution. I foresee a "chilling” of the engagement of expert consultants and engineers, of farsighted resolutions of boards of directors, of surveys and of the written sharing of ideas. None of this benefits the public interest.

There is something essentially wrong with a policy which demands large expenditures (around $828,000 in this case) to control pollution problems and then requires that same industry to produce its work product to be used against it in litigation concerning past pollution which that same work product has been designed to correct.

Ultimately, of course, the consumer pays the total cost.

Swainson and J. W. Fitzgerald, JJ., did not sit in this case.