Opinion issued November 13, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00698-CV
____________
IN RE JOHN CRANE INC., Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
By petition for writ of mandamus, relator, John Crane Inc., challenges the June 13th and June 23rd orders from the trial court compelling discovery responses. We grant the petition for writ of mandamus.
Factual and Procedural Background
John Crane sells gaskets and manufactures sealing products, including packing material for valves and pumps. Carl Terranova, the real party in interest, alleged that, while working at the Boston Naval Shipyard in Boston, Massachusetts, he was exposed to John Crane’s gaskets and sealing materials which contained asbestos.
Terranova sued John Crane and propounded discovery requests which included 78 interrogatories and 60 requests for production. John Crane timely objected, contending that the discovery requests were overbroad, unduly burdensome, and were not tied to particular products which Terranova allegedly used or was exposed to, or to time periods of such use.
Terranova filed a motion to compel production of documents, but a hearing on the motion was postponed while the parties attempted to resolve their discovery dispute. Terranova filed a supplemental motion to compel, and the trial court granted the motions to compel. John Crane filed this mandamus complaining, specifically, about being compelled to respond to requests for production 1, 2, 4, 5, 6, 10, 11, 23, 34, 35, 39, 42, 51, 52, 55, 56, 57, and 59 and interrogatories 72 and 76. In his response to John Crane’s petition for writ of mandamus, Terranova withdrew most of the discovery requests at issue and modified several others.
This Court issued temporary orders staying all proceedings pending the trial court’s order regarding the discovery requests Terranova offered to withdraw. The trial court issued a new order modifying its earlier order compelling discovery responses. John Crane filed a supplemental petition for mandamus that abandoned most of the complaints in its original petition and narrowed its requested mandamus relief to three discovery questions—requests for production 35 and 42 and interrogatory 76.
Discovery Orders
In three points of error, John Crane argues that (1) request for production 42 is overbroad as a matter of law, (2) request for production 35 is impermissibly overbroad, and (3) interrogatory 76 is overbroad on its face and is not limited to any particular product.
Recognizing the potential for abuse, the Texas Supreme Court and others have articulated principles and adopted procedural devices to curb discovery abuse. First, discovery requests must be reasonably tailored to include only matters relevant to the case. See In re American Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998); Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 814 (Tex. 1995). Second, discovery may not be used as a fishing expedition or to impose unreasonable discovery expenses on the opposing party. See K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex. 1996). Third, a court may “in the interest of justice,” issue a protective order to “protect the movant from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights.” Tex. R. Civ. P. 192.6(b). The new discovery rules explicitly encourage trial courts to limit discovery when “the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.” Tex. R. Civ. P. 192.4(b); In re Alford Chevrolet-Geo., 997 S.W.2d 173, 180-81 (Tex. 1999). Although a trial court has broad discretion to schedule and define the scope of discovery, it can abuse its discretion by acting unreasonably. See In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998). A party resisting discovery, however, cannot simply make conclusory allegations that the requested discovery is unduly burdensome or unnecessarily harassing. The party must produce some evidence supporting its request for a protective order. See Garcia v. Peeples, 734 S.W.2d 343, 345 (Tex. 1987).
Mandamus is an extraordinary remedy, available only when a trial court clearly abuses its discretion and when there is no adequate remedy on appeal. Walker v. Packer, 827 S.W.2d 833, 840-44 (Tex. 1992). An appellate remedy may be adequate even though it involves more delay or cost than mandamus. Id. at 842. 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. Id. at 843; In re Kellogg Brown & Root, 7 S.W.3d 655, 657 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding).
John Crane lodged various objections to each of the discovery requests to which it was ultimately compelled to respond. Before answering and responding to the interrogatories and requests for production, John Crane lodged a general objection. Specific objections were found after each request. The general objection was as follows:
John Crane Inc. objects to each and every Interrogatory and Request for Production that relates to periods of time, geographical areas, or activities outside the scope of the allegations of the underlying complaint in that such Interrogatory is irrelevant, overly broad, not reasonably calculated to lead to the discovery of admissible evidence, and would impose an unnecessary burden on John Crane Inc., to search out, review, organize and produce information and documents which are not relevant to any issue in this case, and it would be oppressive to require this party to do so. Defendant has never manufactured, supplied, sold or produced asbestos insulation products. Defendant manufactures engineered sealing products, some of which contained asbestos but which encapsulated the fibers in lubricants, binders and adhesives so as to prevent their release in normal use and installation.
With this general objection in mind, we will review the requests, individually.
Request for Production 35
In point of error two, John Crane contends that request for production 35 is impermissibly overbroad. The request reads as follows:
35.Any and all documents reflecting the acquisition, through purchase, reorganization, merger or otherwise, of another company by defendant that manufactured, sold, processed, distributed, or supplied asbestos or materials or products containing asbestos.
John Crane did not re-urge its general objection, but objected to the relevance of this request. It further responded that
Crane Packing Company was organized in Illinois in 1917 and began the manufacture and sale of asbestos-containing products about 1930. It merged with John Crane-Houdaille, Inc., a Delaware corporation, on August 3, 1981. On March 27, 1988, Defendant changed its name to John Crane Inc.
John Crane supplemented its response and added that “Defendant, John Crane Inc., does not contest responsibility for the sales of asbestos-containing products by Crane Packing Company and John Crane Houdaille, Inc.” In its June 23rd order, the trial court required John Crane to “provide responsive documents and items.”
In its petition, John Crane argues that the request, as written, would require it to produce documents and drafts related to “negotiations, merger agreements, insurance, employee pension benefits, taxes, debts, financing arrangements, and corporate resolutions, just to name a few.” Terranova responded that the information is relevant to determine when John Crane obtained knowledge regarding the health hazards of asbestos. That information, however, would not logically stem from the request as phrased. Terranova also contends that the knowledge of previous owners could be imputed to John Crane. However, John Crane specifically stated in its response that it does not contest the responsibility of the previous owners. Finally, Terranova argues that, even if the information is irrelevant, discovery orders mandating the disclosure of irrelevant documents are not ordinarily sufficient to justify mandamus relief. See Tilton v. Marshall, 925 S.W.2d 672, 682-83 (Tex. 1996).
In Tilton, the Texas Supreme Court further stated that “however, ‘[w]here a discovery order compels the production of patently irrelevant or duplicative documents, such that it . . . imposes a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party,’ mandamus relief may also be justified.” Id. (tithing record) (citing Walker, 827 S.W.2d at 843); see Sears, Roebuck & Co. v. Ramirez, 824 S.W.2d 558 (Tex. 1992) (demand for tax returns); General Motors Corp. v. Lawrence, 651 S.W.2d 732 (Tex. 1983) (demand for information about all vehicles for all years); see also Sanderson, 898 S.W.2d at 815 (“While plaintiffs are entitled to discover evidence of [Texaco’s] safety policies and practices as they relate to the circumstances involved in their allegations, a request for all documents authored by [the safety director] on the subject of safety, without limitation as to time, place or subject matter, is overbroad.”).
Here, the request, as written, required John Crane to produce documents related to acquisitions spanning 86 years of business. The burden imposed on John Crane is far out of proportion to any benefit to Terranova. See Tilton, 925 S.W.2d at 683. In its discovery response, John Crane acknowledged that it does not contest responsibility for the sales of asbestos-containing materials of any of its predecessors; therefore, Terranova’s justification for seeking the documents is rendered moot. We hold that the trial court abused its discretion when it compelled John Crane to respond to request for production 35, which is impermissibly overbroad, and because the expense involved in complying with the request is unduly burdensome, John Crane would have no adequate remedy on appeal.
We sustain point of error two.
Request for Production 42
In point of error one, John Crane argues that request for production 42 is overbroad as a matter of law. The request reads as follows:
42.Any and all documents reflecting the physical or chemical composition, makeup or breakdown of any and all asbestos-containing materials or products or components of asbestos-containing materials or products manufactured, sold, and/or distributed by Defendant.
John Crane re-urged its general objection and did not supplement its response. The trial court’s June 23rd order required John Crane to “provide responsive documents and items, as to the years prior to and including 1990.”
In its petition, John Crane argues that the request requires it to “produce an ocean of documents without any reasonable limitation.” John Crane contends that it has been in existence since 1917 and has manufactured “hundreds of asbestos-containing products.” Further, because the request is not tied to a particular product Terranova claimed to have used and is not limited to time periods in which such use may have occurred, the request is “demanding the impossible.”
Terranova argues that, because John Crane’s general objection stated that its products were safe because the asbestos was encapsulated, the chemical composition of the products is relevant to ascertain the effectiveness of the encapsulation.
However, the request does not ask for the information as it relates to Terranova’s exposure. It simply asks for any and all asbestos-containing products. John Crane submitted an affidavit from George R. McKillop, a former product manager in its packing division. McKillop testified that sales records for asbestos-containing products are available from 1977 to 1985 on microfilm. He further testified that searching for sales records requires searching through “several hundred thousand documents” and would “cost well over $100,000” to copy. The request is overbroad and not reasonably calculated to lead to the discovery of admissible evidence. We hold that the trial court abused its discretion when it compelled John Crane to respond to request for production 42, which is overbroad, and because the expense involved in complying with the request is unduly burdensome, John Crane would have no adequate remedy on appeal.
We sustain point of error one.
Interrogatory 76
In point of error three, John Crane argues that interrogatory 76 is overbroad on its face and is not limited to any particular product. The interrogatory reads as follows:
76.Do any documents, including but not limited to written memoranda, specifications, recommendations, blueprints, or other written materials of any kind or character, relating to the design, preparation, testing or introduction into the market of the products listed in any of the prior interrogatories or your answers thereto still exist? If so, state:
(a) A description of each such document.
(b)The name, address, and job title of each person who currently has possession of each document, and where the documents are currently located.
John Crane re-urged its general objection and further objected that the interrogatory was seeking irrelevant information because “such testing as it has done on its asbestos-containing products was for quality control and performance specifications.” John Crane’s answer concluded by stating that “Defendant has conducted no tests relating to the safety of its asbestos-containing products, but is aware that attorneys representing it in this and other litigation have retained experts who may have conducted such tests.” In a supplemental answer, John Crane added that “defendant is serving herewith a copy of its asbestos packing style list and copies of various sales brochures in its possession.” In its June 13th order, the trial court ordered that,
for Interrogatory no. 76, which is already limited to asbestos-containing materials or products, [John Crane] shall provide: substantive answers which address the use of asbestos in those products, as opposed to some other materials or components; the dates of production wherever [John Crane] made or sold non-asbestos-containing materials; and whatever testing [John Crane] did on its asbestos-containing products, as opposed to its non-asbestos-containing products.
In its petition, John Crane complains that the discovery request is not limited to any particular products or time periods during which any use may have occurred.
Terranova “disclaim[s] any interest in obtaining quality control and product specification testing,” but argues that he is entitled to obtain information regarding the safety testing which may have been conducted for litigation purposes. John Crane did not make a “work product” objection. Further, Terranova contends that John Crane has failed to produce evidence supporting its undue burden claim. See In re Alford Chevrolet-GEO, 997 S.W.2d at 181.
In response to its statement that its attorneys may have retained experts who conducted tests, John Crane submitted an affidavit from Anthony Packard, an attorney with the Law Offices of Nisen & Elliot. Packard testified that his firm is retained counsel for John Crane in the defense of its asbestos-related litigation. He testified that the defense of the more than 100,000 asbestos suits filed against John Crane has been assigned to “well over 60 law firms located in various jurisdictions throughout the United States,” and the expense associated with compiling data concerning any product testing performed in such suits, both in man-hours and detraction from other pending lawsuits “would result in an inordinate expense.” We hold that the trial court abused its discretion when it compelled John Crane to respond to interrogatory 76, which is overbroad, and because the expense involved in answering the interrogatory is unduly burdensome, John Crane would have no adequate remedy on appeal. We sustain point of error three.
Conclusion
We grant John Crane Inc.’s petition for mandamus relief, order the trial court to vacate its June 13th and June 23rd orders concerning requests for production 35 and 42 and interrogatory 72, conditionally issue the writ of mandamus, and lift our stay. The writ will issue only if the trial court fails to comply. All outstanding motions are denied.
George C. Hanks, Jr.
Justice
Panel consists of Justices Taft, Jennings, and Hanks.