Charles R. McElwee
Robinson & McElwee
Charleston, West Virginia
Attorney for the Petitioners

Marvin W. Masters
Richard A. Monahan
Masters & Taylor, L.C.
Charleston, West Virginia
Attorneys for the Respondents

CHIEF JUSTICE McHUGH delivered the Opinion of the Court.

JUSTICE BROTHERTON AND JUSTICE RECHT did not participate.
JUDGE FOX and RETIRED JUSTICE MILLER sitting by temporary assignment.

        1. "'A writ of prohibition is available to correct a clear legal error resulting from a trial court's substantial abuse of its discretion in regard to discovery orders.' Syllabus Point 1, State Farm Mut. Auto. Ins. Co. v. Stephens, 188 W. Va. 622, 425 S.E.2d 577 (1992)." Syl. pt. 1, State ex rel. Erickson v. Hill, 191 W. Va. 320, 445 S.E.2d 503 (1994).
        2. Ordinarily the denial of a motion for failure to state a claim upon which relief can be granted made pursuant to West Virginia Rules of Civil Procedure 12(b)(6) is interlocutory and is, therefore, not immediately appealable.
        3. "Under Rule 26(b)(1)(iii) of the West Virginia Rules of Civil Procedure, a trial court may limit discovery if it finds that the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation." Syl. pt. 2, State Farm Mutual Automobile Insurance Co. v. Stephens, 188 W. Va. 622, 425 S.E.2d 577 (1992).
        4. "Where a claim is made that a discovery request is unduly burdensome under Rule 26(b)(1)(iii) of the West Virginia Rules of Civil Procedure, the trial court should consider several factors. First, a court should weigh the requesting party's need to obtain the information against the burden that producing the information places on the opposing party. This requires an analysis of the issues in the case, the amount in controversy, and the resources of the parties. Secondly, the opposing party has the obligation to show why the discovery is burdensome unless, in light of the issues, the discovery request is oppressive on its face. Finally, the court must consider the relevancy and materiality of the information sought." Syl. pt. 3, State Farm Mutual Automobile Insurance Co. v. Stephens, 188 W. Va. 622, 425 S.E.2d 577 (1992).
        5. "The question of the relevancy of the information sought through discovery essentially involves a determination of how substantively the information requested bears on the issues to be tried. However, under Rule 26(b)(1) of the West Virginia Rules of Civil Procedure, discovery is not limited only to admissible evidence, but applies to information reasonably calculated to lead to the discovery of admissible evidence." Syl. pt. 4, State Farm Mutual Automobile Insurance Co. v. Stephens, 188 W. Va. 622, 425 S.E.2d 577 (1992).
        6. "The following six-factor test should be applied in determining whether there is 'good cause' pursuant to Rule 26(c)(7) of the West Virginia Rules of Civil Procedure to issue a protective order: (1) The extent to which the information is known outside of the defendant's business; (2) The extent to which it is known by employees and others involved in the defendant's business; (3) The extent of the measures taken by the defendant to guard the secrecy of the information; (4) The value of the information to the defendant and competitors; (5) The amount of effort or money expended by the defendant in developing the information; and (6) The ease or difficulty with which the information could be properly acquired or duplicated by others." Syllabus, State ex rel. Johnson v. Tsapis, 187 W. Va. 337, 419 S.E.2d 1 (1992).

Id. at 758-59, 197 S.E.2d at 99-100. (citations omitted).
        Although Wilfong did not directly address the denial of a motion for failure to state a claim upon which relief can be granted made pursuant to W. Va. R. Civ. P. 12(b)(6), the above rationale in Wilfong is nevertheless applicable to a 12(b)(6) motion. See 15A Charles Alan Wright et al., Federal Practice and Procedure § 3914.1 at 493 (2d ed. 1992) ("Ordinarily the denial [of a motion to dismiss for failure to state a claim] is not appealable." (footnote omitted)); Texaco, Inc. v. Cottage Hill Operating Co., 709 F.2d 452, 453 (7th Cir. 1983) ("As a general rule, denials of motions to dismiss are not appealable." (citations omitted)); Akerson v. City of Bridgeport, 649 A.2d 796 (Conn. App. Ct. 1994); School Bd. of Marion Co. v. Angel, 404 So.2d 359 (Fla. Dist. Ct. App. 1981) (Prohibition is not available to review the correctness of a judge's ruling on a motion to dismiss); Thornton v. Hickox, 886 P.2d 779 (Idaho 1994); Gutierrez v. Gutierrez, 860 P.2d 216 (N.M. Ct. App. 1993); and Venzel v. Enright, 623 N.E.2d 69 (Ohio 1993).See footnote 5
        Although for obvious reasons the defendants resist categorizing this prohibition as an appeal of the denial of a motion to dismiss a claim for failure to state a cause of action, essentially that is what this proceeding involves. Accordingly, we hold that ordinarily the denial of a motion for failure to state a claim upon which relief can be granted made pursuant to West Virginia Rules of Civil Procedure 12(b)(6) is interlocutory and is, therefore, not immediately appealable. Thus, the defendants may not indirectly raise this issue by seeking a writ of prohibition in order to preclude the trial judge from compelling discovery.See footnote 6

            3. Where a claim is made that a discovery request is unduly burdensome under Rule 26(b)(1)(iii) of the West Virginia Rules of Civil Procedure, the trial court should consider several factors. First, a court should weigh the requesting party's need to obtain the information against the burden that producing the information places on the opposing party. This requires an analysis of the issues in the case, the amount in controversy, and the resources of the parties. Secondly, the opposing party has the obligation to show why the discovery is burdensome unless, in light of the issues, the discovery request is oppressive on its face. Finally, the court must consider the relevancy and materiality of the information sought.

            4. The question of the relevancy of the information sought through discovery essentially involves a determination of how substantively the information requested bears on the issues to be tried. However, under Rule 26(b)(1) of the West Virginia Rules of Civil Procedure, discovery is not limited only to admissible evidence, but applies to information reasonably calculated to lead to the discovery of admissible evidence.

See also syl. pts. 3 and 4 of Truman v. Farmers & Merchants Bank, 180 W. Va. 133, 375 S.E.2d 765 (1988).
        In Stephens, supra, State Farm Mutual Automobile Insurance Company (hereinafter State Farm) sought a writ of prohibition from this Court in order to prohibit the trial court from holding it in contempt for failing to comply with court- ordered discovery. State Farm contended that the discovery order in the bad faith action was oppressive and unduly burdensome. For example, the interrogatories requested State Farm to provide information on every claim filed against it nationwide since 1980 which involved allegations of bad faith, unfair trade practice violations, excess verdict claims, and inquiries from insurance industry regulators regarding State Farm's handling of claims. Id.
        An affidavit of a State Farm employee, Gary Driscoll, stated that it would cost $40 million to produce a list of all of the bad faith claims filed against State Farm nationwide since 1980. Based on these facts, this Court found that the trial court had substantially abused its discretion by compelling the above discovery since the information sought, although relevant, was unduly burdensome and oppressive. Id.
        In the case before us, the defendants make a general assertion that they should not be compelled to respond to the discovery because the discovery involves information which is not relevant and because the discovery involves the disclosure of "highly sensitive, proprietary financial information elicited by . . . a business competitor[.]" Specifically, the defendants complain in their petition about the discovery of the following information:
            (1) pricing policy, price lists, and price charged since 1984 for concrete and how the prices were determined, including the use, time periods, application and conditions of discounts, escalation clauses, formula, multipliers, adjustments and labor and material indices;

            (2) a list by date and identification of documents reflecting the cost of manufacturing or producing concrete for each calendar quarter since 1984, and the proportion of the total costs represented by labor, materials and all other cost items, both fixed and variable;

            (3) the gross and net sales of concrete by quarter and year broken down according to all domestic sales and all foreign sales;

            (4) the total dollar amount of sales of concrete monthly since 1984 from defendants' Parkersburg/Vienna concrete plant, and to each customer from that plant;

            (5) the total dollar amount of sales concrete monthly since 1984 within West Virginia;

            (6) a list of customers who have made purchases of concrete since 1984 within West Virginia from the Parkersburg/Vienna plant and the date on which each purchase was made and the amount of each purchase;

            (7) a list of each study or report concerning the productivity of labor, including labor productivity used in any negotiations of wage or salary with employees since 1984;

            (8) cost accounting policy;

            (9) new entrants into the market and the productive capacity and price structure of other manufacturers of concrete since 1984; and

            (10) the income tax returns of each of the two corporate defendants and the personal income tax returns of the owner of the two corporate defendants for each year since 1984.

(emphasis provided and footnote omitted).
        As we have previously stated, "discovery is not limited only to admissible evidence, but applies to information reasonably calculated to lead to the discovery of admissible evidence." Syl. pt. 4, in relevant part, of Stephens, supra. Our review of the interrogatories and request for the production of documents indicates that the information requested by the plaintiff is "reasonably calculated to lead to the discovery of admissible evidence." The very nature of an antitrust action or an unfair trade practices action involves the discovery of how a business conducts itself. However, the fact that business trade secrets are being discovered does not make the information being sought less relevant.
        Furthermore, the discovery does not appear oppressive on its face, and the defendants, unlike State Farm in Stephens, supra, have failed to demonstrate how the discovery is oppressive and unduly burdensome. With this in mind, we address the defendants' specific arguments of how the trial judge should have limited the plaintiff's discovery requests.
        First, the defendants assert that the trial judge should have imposed time-period limits upon the discovery. Specifically, the defendants argue that the trial judge should have prevented the plaintiff from discovering information from 1984 until 1993 since the plaintiff was not even incorporated until 1993. The defendants contend that the information requested in the 1980's is not relevant.
        Conversely, the plaintiff asserts that the Supreme Court of the United States has expressly rejected this argument:
            The trial court further erred in its persistent exclusion of evidence relating to the pre-1938 period, on the ground that since [the petitioner] came to this country in 1938 nothing which transpired earlier could be relevant to his suit. Petitioners sought to introduce evidence that the conspiracy and monopolization alleged began in the early 1930's . . . . This evidence was clearly material to petitioners' charge that there was a conspiracy and monopolization in existence when they came into the industry, and that they were eliminated in furtherance thereof.

Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 709-10, 82 S. Ct. 1404, 1416, 8 L. Ed.2d 777, 790 (1962) (footnote omitted). Although the plaintiff in the case before us does not specifically assert into the complaint that the monopoly started prior to its entrance in the market, common sense dictates that a comparison between how the defendants conducted business prior to plaintiff's entrance into the market with how the defendants conducted business after the plaintiff's entered the market could rationally lead to the discovery of admissible evidence. Thus, the defendants have failed to show that the trial judge substantially abused his discretion by not imposing time-period limits upon the discovery.
        Second, the defendants assert that the trial judge should have imposed geographic limits upon the discovery because the plaintiff's business is only in West Virginia whereas the defendants' business encompasses four states. The plaintiff correctly points out that the focus of the discovery is on the Parkersburg/Vienna area of West Virginia. Moreover, the plaintiff notes that W. Va. Code, 47-18-4 [1978] states: "The establishment, maintenance or use of a monopoly or an attempt to establish a monopoly of trade or commerce, any part of which is within this State, by any persons for the purpose of excluding competition or controlling, fixing or maintaining prices is unlawful." (emphasis added). Thus, information regarding the defendants' business in the other three states could rationally lead to admissible evidence regarding the existence of a monopoly which encompasses West Virginia as well as other states. The defendants have failed to show that the trial judge substantially abused his discretion by not imposing geographic limits upon the discovery.
        Third, the defendants assert that the trial judge should have denied the plaintiff's discovery of the defendants' income tax returns since they are not relevant. The plaintiff contends that the income tax returns are relevant since it is seeking punitive damages in its claim of tortious interference. See C.W. Development, Inc. v. Structures, Inc., 185 W. Va. 462, 466, 408 S.E.2d 41, 45-46 (1991) (Recognizing the potential for recovery of punitive damages under a tortious interference claim.) See also syl. pt. 13, TXO Production Corp. v. Alliance Resources, Inc., 187 W. Va. 457, 419 S.E.2d 870 (1992), cert. granted in part by ___ U.S. ___, 113 S. Ct. 594, 121 L. Ed. 2d 532 and judgment affirmed by ___ U. S. ___, 113 S. Ct. 2711, 125 L. Ed. 2d 366 (1993) (The financial position of the defendant is a factor a jury may consider when determining whether to award punitive damages.) The plaintiff argues that the defendants are alter egos of one another, therefore, the wealth and financial position of the defendants are factors relevant to whether the corporate veil may be pierced. Cf. Norfolk Southern Ry. Co. v. Maynard, 190 W. Va. 113, 437 S.E.2d 277 (1993) and Laya v. Erin Homes, Inc., 177 W. Va. 343, 352 S.E.2d 93 (1986). Whether the plaintiff will prevail on any of the aforementioned claims is not for this Court to decide. Nevertheless, we agree that the information sought could lead to the discovery of admissible evidence. Therefore, the defendants have failed to demonstrate that the trial judge substantially abused his discretion by allowing the discovery of the defendants' income tax returns.
        Fourth, the defendants argue that the trial judge should have afforded more protection from the discovery of business and trade secrets than that which was afforded. W. Va. R. Civ. P. 26(c)(7) does provide that protective orders may be entered in order to prevent the disclosure of trade secrets:
            Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

            . . . .

            (7) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way[.]

Furthermore, this Court has outlined factors which should be considered when determining whether a protective order should be issued:
            The following six-factor test should be applied in determining whether there is 'good cause' pursuant to Rule 26(c)(7) of the West Virginia Rules of Civil Procedure to issue a protective order:

            (1) The extent to which the information is known outside of the defendant's business;

            (2) The extent to which it is known by employees and others involved in the defendant's business;

            (3) The extent of the measures taken by the defendant to guard the secrecy of the information;

            (4) The value of the information to the defendant and competitors;

            (5) The amount of effort or money expended by the defendant in developing the information; and

            (6) The ease or difficulty with which the information could be properly acquired or duplicated by others.

Syllabus, State ex rel. Johnson v. Tsapis, 187 W. Va. 337, 419 S.E.2d 1 (1992).
        As we previously pointed out, the trial judge did order that the information discovered could not go beyond the parties involved in this action. We fail to see nor do the defendants suggest how the trial judge could provide more protection to the defendants than he already has and still enable the plaintiff to acquire more information regarding its claim against the defendants. Cf. 4 James W. Moore, Moore's Federal Practice ¶ 26.27 at 26-396 (2d ed. 1995) (A trial judge must weigh the need of the party who is seeking the protective order to keep certain information secret against the need of the party who is requesting the discovery to have the information in the action.) Therefore, the defendants have not shown that the trial judge substantially abused his discretion by not entering a broader protective order.See footnote 7
        In conclusion, the information requested by the plaintiff is relevant to the complaint since it is "reasonably calculated to lead to the discovery of admissible evidence." Moreover, unlike State Farm in Stephens, supra, the defendants have failed to demonstrate how the information requested is oppressive and unduly burdensome. The defendants correctly point out that the trial judge has broad authority to control the discovery process:
        There have been repeated expressions of concern about undue and uncontrolled discovery, and voices from this Court have joined the chorus. But until and unless there are major changes in the present Rules of Civil Procedure, reliance must be had on what in fact and in law are ample powers of the district judge to prevent abuse.

Herbert v. Lando, 441 U.S. 153, 176-77, 99 S. Ct. 1635, 1649, 60 L. E.2d 115, 134 (1979) (footnote omitted). However, this Court will not disturb the trial judge's decisions regarding discovery on a writ of prohibition unless the complaining party can show that the trial judge substantially abused his discretion. See syl. pt. 1, State ex rel. Erickson v. Hill, supra.
        Upon all of the above, we hold that the defendants have failed to show that the trial judge substantially abused his discretion when compelling discovery. Thus, the defendants' request for a writ of prohibition is denied.

            In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory,
constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.

Wright, supra at § 3914.1 at 493 (footnote omitted). Additionally, in criminal cases the appeal of a denial of the motion to dismiss the criminal charges may be appealable in special circumstances. See, e.g., State v. Nearhood, 518 N.W.2d 165 (Neb. Ct. App. 1994) (An order denying defendant's motion to dismiss the criminal charges pending against him because he has not been tried within the 180 days time requirement is a final appealable order.)

John W. Lodge Dist. Co., Inc. v. Texaco, Inc., 161 W. Va. 603, 605-6, 245 S.E.2d 157, 159 (1978) (citation omitted).