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MANDAMUS RELIEF IN DISCOVERY DISPUTES

To be entitled to the extraordinary relief of a writ of mandamus, relators must show that the trial court clearly
abused its discretion and they have no adequate remedy by appeal.  In re Team Rocket, L.P., 256 S.W.3d 257,
259 (Tex. 2008) (orig. proceeding).  A trial court clearly abuses its discretion if it reaches a decision so arbitrary
and unreasonable as to amount to a clear and prejudicial error of law, or if it clearly fails to correctly analyze or
apply the law.  In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per
curiam); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).  The scope of discovery is a
matter of trial court discretion.  In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding) (per
curiam).  However, a writ may issue where the trial court's order improperly restricts the scope of discovery
defined by the Texas Rules of Civil Procedure.  Lindsey v. O'Neill, 689 S.W.2d 400, 401 (Tex. 1985) (orig.
proceeding) (per curiam).  
Inadequate Remedy by Appeal
Relators argue the errors created by the trial court's December 15, 2008 discovery order cannot be corrected on
appeal.  To determine if a party has an adequate remedy by appeal, we ask whether Aany benefits to mandamus
review are outweighed by the detriments."  In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004)
(orig. proceeding).  An appeal from a trial court's discovery order is not adequate if (1) the appellate court would
not be able to cure the trial court's error on appeal; (2) the party's ability to present a viable claim or defense is
vitiated or severely compromised; or (3) missing discovery cannot be made a part of the appellate record.  In re
Ford Motor Co., 988 S.W.2d 714, 721(Tex. 1998) (orig. proceeding); In re Colonial Pipeline Co., 968 S.W.2d 938,
941 (Tex. 1998) (orig. proceeding) (per curiam).  In re Liberty Mutual Ins. Co., No. 14-09-00086-CV (Tex.App.-
Houston [14th Dist.] Feb. 24, 2009)(Seymore) (
discovery mandamus granted, laches argument overruled, no lack
of diligence)

In re Graco Children’s Prods., 210 S.W.3d at 600–01 (granting relief on discovery order regarding documents related to products
that did not relate to alleged defects in harness clip of car seat at issue); In re Am. Optical Corp., 988 S.W.2d at 713 (granting relief
on order allowing discovery related to respiratory protection equipment plaintiffs never claimed to have used); Texaco, Inc., 898 S.W.
2d at 814 (granting relief on discovery order regarding substances to which plaintiffs never alleged exposure); Gen. Motors Corp. v.
Lawrence, 651 S.W.2d 732, 734 (Tex. 1983) (orig. proceeding) (granting relief on discovery order regarding vehicles without fuel
filler-neck that was allegedly defective).  The courts of appeals have similarly granted mandamus relief.  See, e.g., In re Merck & Co.,
150 S.W.3d 747, 750 (Tex. App.—San Antonio 2004, orig. proceeding) (granting relief on order allowing discovery of “pharmaceutical
product that the deceased plaintiff never used, that has yet to be sold within the United States, and that has a different chemical
structure and patent than the purportedly defective medication at issue”); In re Sears Roebuck & Co., 123 S.W.3d 573, 578 (Tex. App.
—Houston [14th Dist.] 2003, orig. proceeding) (granting relief on order allowing discovery of products to which plaintiffs were never
exposed); but see In re Exmark Mfg. Co., 13-09-00438-CV, 2009 WL 3602078 (Tex. App.—Corpus Christi Oct. 30, 2009, orig.
proceeding [mand. pending.]) (denying relief on order allowing discovery regarding lawnmowers not used by plaintiffs).  

____________

DISCOVERY MANDAMUS PETITIONS IN THE HOUSTON COURTS OF APPEALS

In Re Continental Airlines, Inc. (Tex.App. - Houston [14th Dist.] Feb. 4, 2010)(Seymore)
(
mandamus relief granted to quash apex disposition)
The trial court abused its discretion by compelling the apex deposition of Larry Kellner.  Accordingly, we
conditionally grant Continental’s petition and direct the trial court to set aside its October 26, 2009 order
compelling Kellner’s deposition.  
MOTION OR WRIT GRANTED: Opinion by Justice Seymore     
Before Chief Justice Hedges, Justices Seymore and Sullivan    
14-09-00952-CV  In Re Continental Airlines, Inc.    
Appeal from 11th District Court of Harris County
Trial Court Judge:
Mike Miller

In re Cooper Tire & Rubber Co. (Tex.App. - Houston [14th Dist.] Feb. 2, 2010)(Anderson)
(
discovery mandamus granted to protect trade secrets in product liability litigation) (trade secret privilege-relevant
factors)  trial court abused its discretion by compelling Cooper Tire to produce to the plaintiffs the documents
submitted in camera.  Accordingly, we conditionally grant the petition for writ of mandamus and direct the trial
court to set aside its October 12, 2009 order compelling Cooper Tire to produce to the plaintiffs the subject
documents.  
MOTION OR WRIT GRANTED: Opinion by
Justice Anderson     
Before Chief Justice Hedges, Justices Anderson and Boyce    
14-09-00906-CV  In Re Cooper Tire & Rubber Company    
Appeal from 127th District Court of Harris County
Trial Court Judge:
R.K. Sandill

In re Texas Tri-Care Rehabilitation (pdf) (Tex.App.- Houston [1st Dist.] Jan. 22, 2010)(per curiam)
(
discovery mandamus denied re: order compelling responses to certain requests for production)
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam      
Before Justices Keyes, Alcala and Hanks    
01-10-00003-CV  In re Texas Tri-Care Rehabilitation and Lawrence Roddick, D.C.    
Appeal from 11th District Court of Harris County
Trial Court Judge:  
Hon. Mike Miller  

In re Texas Windstorm Ins. Ass'n (pdf) (Tex.App.- Houston [1st Dist.] Jan. 14, 2009)(per curiam) (discovery
mandamus denied)
Texas Windstorm Insurance Association (TWIA) filed a petition for a writ of mandamus complaining of Judge
Criss's October 26, 2009 discovery order in which she compelled TWIA to produce its complaint log from
September 13, 2008, to October 26, 2009. (1) See Tex. Ins. Code Ann. § 542.005(b) (Vernon 2009) (requiring
insurer to maintain record of complaints); 28 Tex. Admin. Code §§ 21.2501-.2506 (2009) (maintenance of
complaint records).
We deny the petition for a writ of mandamus.
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam  
Before Justices Keyes, Sharp and Massengale   
01-09-00964-CV  In re Texas Windstorm Insurance Association   
Appeal from 56th District Court of Galveston County
Trial Court Judge:
Hon. Susan Elizabeth Criss

In re Van Dyke (Tex.App.- Houston [14th Dist.] Oct. 20, 2009)(per curiam denial)
(
mandamus re discovery order denied, request moot, turnover order is appealable, hence no mandamus)
MOTION OR WRIT DENIED: Per Curiam      
Before Chief Justice Hedges, Justices Seymore and Sullivan  
14-09-00822-CV   In Re Scott Van Dyke     
Appeal from 133rd District Court of Harris County
Trial Court Judge:  
Jaclanel McFarland  
We agree that the restricted discovery will, at the very least, severely compromise relators' ability to develop and
present a viable defense to GAO's claims.  Moreover, without the requested discovery, relators will not be in
position to proffer evidence in a bill of exceptions.  Therefore, we conclude relators' substantial rights have been
impaired and, there is no an adequate remedy by appeal.  See Walker, 827 S.W.2d at 842 (stating appeal is not
adequate when parties stands to lose substantial right).  

DISCOVERY MANDAMUS GRANTED TO PRESERVE PRIVILEGE
In Re Boxer Property Management Corp. (Tex.App.- Houston [14th Dist.] Sep. 3, 2009)(Boyce)
(
discovery mandamus granted)
MOTION OR WRIT GRANTED: Opinion by
Justice Boyce
Before Justices Anderson, Guzman and Boyce  
14-09-00579-CV  In Re Boxer Property Management Corporation and 9343 North Loop, L.P.  
Appeal from 133rd District Court of Harris County
Trial Court Judge:
Jaclanel McFarland   
Boxer Property Management Corporation and 9343 North Loop, L.P. filed a petition for writ of mandamus asking
this court to compel the presiding judge of the 133rd District Court of Harris County to vacate a June 16, 2009
order compelling the deposition of relators' corporate representative.  Relators contend the deposition will invade
the
attorney work product privilege regarding their response to requests for production propounded by real
parties in interest, Lynell Wells, individually, as the legal representative of the estate of her deceased husband,
Marvin Wells, and as next friend of her minor child, Adrian D. Wells; Marvin Wells d/b/a M & E Transportation;
Marvin G. Wells; and Shameka Wells (the "Wells plaintiffs").  We conditionally grant the writ.

In Re Lesikar,
NO.
14-09-00016-CV (Tex.App.- Houston [14th Dist.] May 7, 2009)(Guzman)(scope of remand, discovery
mandamus denied)(
segregation of attorney's fees required, no fees for non-suited claims)
(
jury trial improperly denied)

In re Heide Ortuno (Tex.App.- Houston [14th Dist.] July 24, 2008)(Brown)
(discovery mandamus denied, order of protection, privilege claim waived)
MOTION OR WRIT DENIED: Opinion by Justice Brown  
Before Justices Brock Yates, Guzman and Brown
14-08-00457-CV In Re: Heide Ortuno, Individually and
as next friend of J.O. a minor child
Appeal from 215th District Court of Harris County
Trial Court
Judge: Levi James Benton

In Re Hicks (Tex.App. - Houston [14th Dist.] Sep. 25, 2008)(Dissent on en banc motion by Frost)
(
discovery disputes, privilege)
DISSENTING:
Dissenting Opinion by Justice Frost  
Before Chief Justice Hedges, Justices Brock Yates, Anderson, Guzman, Brown and Boyce
14-07-00590-CV  In Re: Michael Hicks and Jerry Fazio
Appeal from 155th District Court of Austin County
Trial Court Judge:  Judge Daniel R. Beck




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