YOU BE THE JUDGE WRITING PROBLEM Apache Corp. and El Paso Exploration Co. operated a Texas gas well that exploded, burning out of control for over a year. More than 100 plaintiffs sued the two owners, claiming damage to adjoining gas fields. The plaintiffs also sued Axelson, Inc., which manufactured a valve whose failure may have contributed to the explosion. Axelson, in turn, sued Apache and El Paso. Axelson sought discovery from both companies about an internal investigation they had conducted, before the blowout, concerning kickbacks (illegal payments)

at the gas field. Axelson claimed that the investigation could shed light on what caused the explosion, but the trial court ruled that the material was irrelevant, and denied discovery. Axelson appealed. Is the investigation discoverable?

Argument for Axelson: If the companies investigated kickbacks, they were concerned about corruption and mismanagement—both of which can cause employees to cut corners, ignore safety concerns, fabricate reports, and so forth. All of those activities have the potential to cause a serious accident.

All parties are entitled to discover material that may lead to relevant evidence, and that could easily happen here. Argument for Apache and El Paso: This is a fishing expedition. The investigation was completed before the explosion and is completely unrelated. Any internal investigation has the potential

(a) to reveal valuable business or trade secrets and

(b) to prove embarrassing to the companies investigated. Axelson’s motive is to force the two owners to settle in order to avoid such revelations. Discovery is not supposed to be a weapon.