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Beckwith v. Bethlehem Steel Corp.

Decided: November 2, 1981.

EARL BECKWITH ET AL., PLAINTIFFS,
v.
BETHLEHEM STEEL CORP. ET AL., DEFENDANTS. EDWARD J. BESHADA ET AL., PLAINTIFFS, V. JOHNS MANVILLE ET AL., DEFENDANTS. MARY CRILLEY ET AL., PLAINTIFFS, V. JOHNS MANVILLE ET AL., DEFENDANTS. LEO GALBRAITH, PLAINTIFF, V. BETHLEHEM STEEL CORP. ET AL., DEFENDANTS. PETER HOWELL, PLAINTIFF, V. OWENS ILLINOIS, INC. ET AL., DEFENDANTS. FRANK J. JARUSEWICZ ET AL., PLAINTIFFS, V. JOHNS MANVILLE ET AL., DEFENDANTS. MARGARET NEUNERT, ETC., ET AL., PLAINTIFFS, V. WAYNE STEEL CO., INC., ET AL., DEFENDANTS. GEORGE VAN GLAHN ET AL., PLAINTIFFS, V. BETHLEHEM STEEL CORP. ET AL., DEFENDANTS



Keefe, J.s.c.

Keefe

This motion for summary judgment presents issues arising from the interplay between actions for discovery brought against out-of-state defendants and New Jersey's long arm rule. R. 4:4-4(c)(1). This decision therefore deals with concepts not discussed in Arcell v. Ashland Chemical Co., Inc. , 152 N.J. Super. 471 (Law Div.1977).

Plaintiffs in the eight separate lawsuits now before the court seek to join the Asbestos Information Association/North America, Inc. (hereinafter AIA/NA) as a defendant for the sole purpose of obtaining discovery. AIA/NA was established as a nonprofit corporation to gather and disseminate information to the asbestos industry, government regulatory agencies, the news media, and the general public about asbestos and its affect on human health. Plaintiffs contend that the information distributed throughout the asbestos industry bears on the issue of defendants' knowledge of the hazards of the product. Therefore, plaintiffs seek to compel AIA/NA to produce its complete files for inspection, including reports, records, studies and all interdepartmental memos and other documents relating to the safety of asbestos products and fibers. AIA/NA challenges plaintiffs' assertion of personal jurisdiction over it.

The facts are not in dispute. AIA/NA is a nonprofit Delaware corporation with its sole office in Arlington, Virginia. It does not have a license to do business in New Jersey, has no agents or employees in this State, and no agent for the service of process. It owns no property here, and its membership applications are processed in Virginia. AIA/NA has never engaged in the production, sale or distribution of asbestos or asbestos-related products. The Association has one regular and one associate member in New Jersey. Both members are named defendants in the cases at bar.

Plaintiffs have relied upon Arcell v. Ashland Chemical Co., Inc., supra , as authority for bringing this action. Generally speaking, plaintiffs seek to determine what information AIA/NA had available at given periods of time and what information had been mailed to its members so that a comparison can be made with information plaintiffs have received from other sources, including the member defendants. In Arcell Judge Tarleton observed that the wording of R. 4:18-1(c) acknowledges the existence of a discovery remedy for the production of documents and inspection of lands outside of the discovery procedures found in Part IV of the Rules. He held that "modern rules and statutes relating to discovery do not abrogate equitable jurisdiction as to bills of discovery, and equity may be resorted to where effective discovery cannot be obtained under the rules or statutes." Id. at 506, see, also, 1 Pomeroy Equity Jurisprudence (4 ed.), § 193.

Since the authority for discovery actions against nonparties is rooted in equity law, one must understand the principles upon which such actions were historically permitted. New Jersey has apparently adhered to the rule stated by Professor Pomeroy in his treatise on Equity Jurisprudence , that "no person can properly be made a defendant in the suit for discovery, or compelled as such to disclose facts within his knowledge, unless he has an interest in the subject matter of the controversy in aid of which the discovery is asked." 1 op. cit. § 199 at 285. See McCarter v. Farmers' Loan and Trust Co. , 105 N.J. Eq. 322 (Ch.1929); Walker

v. Pennsylvania Railroad Co. , 134 N.J. Eq. 544 (Ch.1944). Thus, "mere witnesses cannot be joined as defendants and obliged to answer." 1 Pomeroy, op. cit. , § 199 at 286. In order to distinguish between a party who has an "interest" in the litigation and a "mere witness," Judge Tarleton suggests that the proposed defendant must have a "pecuniary" interest in the outcome. Arcell v. Ashland Chemical Co., Inc., supra , 152 N.J. Super. at 507. Since there are no facts here indicating any pecuniary interest that AIA/NA may have in the outcome of plaintiffs' main action, the criteria for joinder have not been met. In that respect this case differs from the Arcell case.

There have been recognized exceptions to the above-stated rule. In Walker v. Pennsylvania Railroad Co., supra , Vice-Chancellor Sooy permitted discovery against a nonparty who had no interest in the pending litigation. The purpose of the suit for discovery was to obtain the names and addresses of proper and necessary parties to the contemplated suit in equity. However, he was quick to point out that the Pennsylvania Railroad was "not a mere witness" since the information sought was required before the case began, as opposed to being admissible during the course of the trial. The information now sought from AIA/NA does not have the same characteristics as that sought in Walker. In this action plaintiffs intend to use the information sought from AIA/NA as evidence in the trial since it may have bearing on defendants' knowledge of product hazards.

Plaintiffs also rely on Lefebvre v. Somersworth Shoe Co. , 93 N.H. 354, 41 A.2d 924 (Sup.Ct.1945), as authority for their position. That case was cited in Arcell v. Ashland Chemical Co., Inc., supra , 152 N.J. Super. at 507, as an exception to the "pecuniary interest" requirement for discovery actions. The case concerned plaintiff's motion for discovery of certain records in the files of the Division of Industrial Hygiene of the State Board of Health which was not a party to the main action. The information sought was "essential and material evidence" in plaintiff's case since it dealt with the analysis of a certain poisonous fluid provided by plaintiff's decedent's employer to

decedent for his use. Although the court noted that the information might be obtained by plaintiff through "one or more depositions," the production of the "record of the analysis of the fluid used by the deceased is a simple statement, although important to the plaintiff." Lefebvre v. Somersworth Shoe Co., supra , 41 A.2d at 927. Not to be overlooked in the analysis of Lefebvre is the fact that discovery was sought from a public body whose interest should be to see that "justice be done and to that end that a full disclosure of the truth be made." 41 ...


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