In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-15-00111-CV
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IN RE AIR LIQUIDE INDUSTRIAL U.S. LP
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Original Proceeding
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MEMORANDUM OPINION
Air Liquide Industrial U.S. LP, (“Relator” or “ALIUS”), filed a petition for
writ of mandamus seeking relief from orders signed by the presiding judge of the
County Court at Law Number One of Jefferson County, Texas. Relator presents
two issues in this original proceeding: (1) whether the trial court lacks jurisdiction
to hear the claims of the real party in interest, Gulf Coast Fabricators, Inc. (“Gulf
Coast”) because a district court in Harris County has assumed dominant
jurisdiction over the dispute; and (2) whether the trial court abused its discretion in
compelling responses to impermissibly overbroad requests for discovery.
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PLEA TO THE JURISDICTION
According to the record currently before us, there are three pending lawsuits
that relate to a dispute between ALIUS and Gulf Coast regarding a Bulk Product
Agreement wherein ALIUS would supply Gulf Coast with argon gas: (1) a
declaratory judgment action filed by Gulf Coast on September 4, 2014, in the
County Court at Law Number One of Jefferson County; (2) a breach of contract
action filed by ALIUS on October 10, 2014, in the 157th District Court of Harris
County; and (3) a breach of contract action against an ALIUS affiliate Air Liquide
Large Industries U.S. LP (“ALLI”), filed by Gulf Coast on January 23, 2015, in the
172nd District Court of Jefferson County. Gulf Coast contends the County Court at
Law Number One retains dominant jurisdiction because it is the court with the
first-filed case. ALIUS contends the County Court at Law Number One lacks
jurisdiction because the 157th District Court took dominant jurisdiction when it
denied Gulf Coast’s plea in abatement.
As a general rule, “when [a] suit would be proper in more than one county,
the court in which [the] suit is first filed acquires dominant jurisdiction to the
exclusion of other courts.” Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248
(Tex. 1988). Exceptions to the general rule apply where: (1) a party’s conduct
estops that party from asserting prior active jurisdiction; (2) a party is not before
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the court of the first-filed suit and cannot be joined; or (3) the plaintiff lacks intent
to prosecute the first lawsuit. Id. ALIUS argues the Harris County district court
asserted dominant jurisdiction over the dispute and that such jurisdiction remains
in the Harris County action unless and until that court’s ruling on the plea in
abatement is set aside. See generally Clawson v. Millard, 934 S.W.2d 899, 901
(Tex. App.—Houston [1st Dist.] 1996, orig. proceeding) (the second court may
assume dominant jurisdiction if, upon hearing a plea in abatement, it determines
that any of the Wyatt exceptions apply).
“The proper method for contesting a court’s lack of dominant jurisdiction is
the filing of a plea in abatement, not a plea to the jurisdiction[.]” In re Puig, 351
S.W.3d 301, 303 (Tex. 2011) (orig. proceeding). A plea in abatement was filed—
and denied—in the Harris County case, but ALIUS has not shown this Court that it
asked the judge of the County Court at Law Number One to abate the Jefferson
County case until a court with mandamus jurisdiction over the Harris County judge
or appellate jurisdiction over the Harris County case determines whether the 157th
District Court abused its discretion in ruling that it had dominant jurisdiction over
the dispute. See id.at 306 (mandamus relief is appropriate when a court issues an
order which actively interferes with the exercise of jurisdiction by a court
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possessing dominant jurisdiction). 1 We conclude that the trial court did not commit
a clear abuse of discretion in denying Relator’s plea to the jurisdiction. Id.
COMPELLING OVERLY-BROAD DISCOVERY
Next, we address whether the trial court erred in compelling responses to
overbroad discovery. The dispute between the parties relates to a supply
agreement. In August 2014, ALIUS sent Gulf Coast notices that four of its sources
of argon had temporarily ceased production and declared a “Force Majeure Period”
during which ALIUS estimated it could provide seventy percent of Gulf Coast’s
normal monthly product consumption. Gulf Coast’s petition for declaratory
judgment seeks a judicial determination that the contract’s “Excuse of
Performance” provision does not apply, that Gulf Coast has fully complied with its
obligations under the agreement, that Gulf Coast has not breached the agreement,
and that Gulf Coast and ALIUS have no more continuing obligations under the
contract. In response to Gulf Coast’s motion to compel, ALIUS argued to the trial
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In the proceedings before the 157th District Court, ALIUS argued the
County Court at Law Number One of Jefferson County did not acquire jurisdiction
over the case because the Bulk Services Agreement was a multi-million dollar
contract and, consequently, the amount in controversy in Gulf Coast’s declaratory
judgment action and ALIUS’s breach of contract claim exceeded the jurisdictional
limit of the county court at law. We express no opinion concerning whether the
Harris County court abused its discretion by denying Gulf Coast’s plea in
abatement.
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court that Gulf Coast’s discovery requests are not reasonably calculated to lead to
discoverable evidence and are overly broad.
Requests to produce must specify the items to be produced with reasonable
particularity. Tex. R. Civ. P. 196.1(b). “The trial court abuses its discretion by
ordering discovery that exceeds that permitted by the rules of procedure.” In re
CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding). “A central
consideration in determining overbreadth is whether the request could have been
more narrowly tailored to avoid including tenuous information and still obtain the
necessary, pertinent information.” Id. at 153. “Overbroad requests for irrelevant
information are improper whether they are burdensome or not[.]” In re Allstate
Cnty. Mut. Ins. Co., 227 S.W.3d 667, 670 (Tex. 2007) (orig. proceeding). “It is the
discovery proponent’s burden to demonstrate that the requested documents fall
within the scope-of-discovery of Rule 192.3.” In re TIG Ins. Co., 172 S.W.3d 160,
167 (Tex. App.—Beaumont 2005, orig. proceeding); see also Tex. R. Civ. P.
192.3. The proponent of discovery covering large periods of time must make a
threshold evidentiary showing to demonstrate how the discovery will result in the
production of relevant evidence. In re Mallinckrodt, Inc., 262 S.W.3d 469, 473
(Tex. App.—Beaumont 2008, orig. proceeding).
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Gulf Coast concedes that Requests for Production Numbers 4 and 17 are
overly broad. Request for Production Number 4, which ALIUS states asks for
documents about its purchases of argon, requires production of “[a]ll
correspondence, communications, emails to and from any person affiliated with
any entity listed in your response to Interrogatory #1, from July 2006 to September
2014.” Request for Production 17 asks for “[a]ll documents relating to your claim
for attorneys fees, including but not limited to engagement contract with Baker
Botts, hourly rates, monthly billings, etc. To the extent that this may contain
references that you contend reveal attorney-client or attorney-work product
privileged information, same may be redacted.” The trial court abused its
discretion by compelling responses to requests for production that the real party in
interest concedes are overbroad. See CSX Corp., 124 S.W.3d at 152.
In addition to the requests that Gulf Coast concedes are overly broad,
ALIUS challenges eleven additional requests for production of documents.
Argon Suppliers
In its discovery requests, Gulf Coast requested documents “pertaining to
ALIUS’s Argon Suppliers” over a period of time in excess of eight years,
beginning three months before the effective date of the Bulk Product Agreement.
The requests call for production of the following:
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REQUEST FOR PRODUCTION NO. 2: Any and all documents
pertaining to ALIUS’s Argon Suppliers from July 2006 to September
2014, including amounts received and price paid, per month from July
2006 to September 2014.
REQUEST FOR PRODUCTION NO. 3: Any and all documents
pertaining to ALIUS’ Argon Suppliers from July 2006 to September
2014, buying Argon from you for supplying Argon to you.
REQUEST FOR PRODUCTION NO. 5: All documents reflecting any
efforts made by you to obtain Argon from any source other than those
listed in your response to Interrogatory # 1 (or any source listed in
Interrogatory #2 who were not, at the time of said efforts, supplying
Argon to you), from July 2006 to September 2014.
By granting Gulf Coast’s motion to compel, the trial court allowed
unfettered discovery of all of ALIUS’s argon transactions and every record of
every activity related to obtaining argon where no transaction occurred. The
requests ask for “any” and “all” documents “pertaining to” suppliers of argon,
potential suppliers of argon, and buyers of argon reaching back eight years before
the supply disruption that Gulf Coast alleges allowed it to terminate the contract.
Gulf Coast suggests that the evidence will show that during the time period of the
contract ALIUS shifted from having reserve capacity to one with little margin for
error, and argues the relevant inquiry is not whether ALIUS acted reasonably when
it notified Gulf Coast of the supply disruption, but whether it engaged in
irresponsible risk-taking. But, the requests for “any and all documents pertaining
to” argon suppliers are insufficiently specific to put ALIUS on notice of the
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documents it must produce. See TIG, 172 S.W.3d at 164. Furthermore, ALIUS’s
previous reserve capacity would not be relevant to its capacity in August 2014,
when the shortage occurred. “This is precisely the sort of fishing expedition that
harvests vast amounts of tenuous information along with the pertinent information”
about the supply disruption, and as such the request is facially overbroad. In re
GMAC Direct Ins. Co., No. 09-10-00493-CV, 2010 WL 5550672, at *1 (Tex.
App.—Beaumont Dec. 30, 2010, orig. proceeding) (mem. op.). The trial court
abused its discretion in compelling discovery responses to requests that are facially
overbroad both in time and in scope. See id.
Possible Sources of Argon
The trial court compelled ALIUS to respond to a discovery request for all
documents reflecting any solicitations, advertisements, trade shows or other
possible source of argon:
REQUEST FOR PRODUCTION NO. 6: All documents reflecting any
solicitations, advertisements, trade shows, or other possible sources
of obtaining Argon that were communicated to you or made available
to you from July 2006 to September 2014.
ALIUS complains that this request strays far outside the parties actions
related to the August 2014 supply disruption. Gulf Coast suggests the evidence
could show ALIUS passed on opportunities to increase capacity, but the request
impermissibly casts a net over a vast array of information without regard to
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whether it will aid in the resolution of the disputed issue. See GMAC, 2010 WL
5550672, at *1. A request for “all” documents “reflecting” possible sources of
obtaining argon is insufficiently specific to put ALIUS on notice of the documents
it must produce. See TIG, 172 S.W.3d at 164. Furthermore, the availability of an
advertisement for argon in July 2006 has no apparent connection to whether
ALIUS could control its supply of argon in September 2014. A “fishing
expedition” of this sort is impermissible. See Texaco, Inc. v. Sanderson, 898
S.W.2d 813, 815 (Tex. 1995) (orig. proceeding). Because the request is overbroad
in time and in scope, the trial court abused its discretion in compelling ALIUS to
respond to the request. See id.
ALIUS’S Customers and Prospects
The trial court compelled ALIUS to provide information about its other
customers and potential customers, including:
REQUEST FOR PRODUCTION NO. 7: Please produce any and all
documents pertaining to ALIUS’ Argon delivery customers from July
2006 to September 2014, including amounts delivered and price paid,
per month, from July 2006 to September 2014.
REQUEST FOR PRODUCTION NO. 8: Please produce true and
correct copies of all contracts referenced in your answer to Request
for Production #7.
REQUEST FOR PRODUCTION NO. 9: All documents reflecting any
efforts made by you to sell Argon to any customer or potential
customer other than those listed in your response to Request for
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Production #6 (or any customer listed in Request to Production #6
who was not, at the time of said efforts, purchasing Argon from you).
REQUEST FOR PRODUCTION NO. 10: All documents reflecting
any inquiries to you from any potential customer from July 2006 to
September 2014.
Gulf Coast theorizes ALIUS increased sales “beyond the proper level” and
suggests the requests will obtain relevant information. ALIUS’s responses might
provide evidence that ALIUS’s argon orders exceeded its supply, but the requests
impermissibly request information well beyond the time when the supply
disruption occurred. See Mallinckrodt, 262 S.W.3d at 473. Requests to produce
every document that reflects ALIUS’s efforts to sell argon and every customer
inquiry impermissibly capture a broad scope of information with no connection to
the performance of the Bulk Product Agreement between ALIUS and Gulf Coast.
The trial court abused its discretion in compelling responses to the requests
because the requests are not narrowly tailored to avoid including tenuous
information and still obtain necessary, pertinent information. See CSX Corp., 124
S.W.3d at 153.
Allocation Decisions
The trial court compelled ALIUS to respond to requests for production
concerning its allocation decisions for a period commencing eight years before this
dispute arose, including:
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REQUEST FOR PRODUCTION NO. 13: All documents showing
how you allocated Argon among your customers at any time from
July 2006 to September 2014 where you did not have sufficient Argon
to meet all customer requirements and engaged in any manner of
allocation.
REQUEST FOR PRODUCTION NO. 14: All documents referring to
or containing any discussion about possible Argon allocations or the
manner in which such allocation would be administered, from July
2006 to September 2014.
REQUEST FOR PRODUCTION NO. 16: All documents referring to
or containing any discussion about your supply of Argon, including
but not limited to whether it was sufficient or insufficient; the
possibility of changes to the supply; contingency plans in the event of
an adverse supply situation, or any similar discussion or subject, from
July 2006 to September 2014.
The declaratory judgment action concerns a supply disruption that occurred
in September 2014. The requests for production of documents concerning ALIUS’s
experience with previous supply disruptions over a preceding eight year period are
overly broad and are not narrowly tailored to avoid including tenuous information.
We conclude that the trial court abused its discretion in compelling responses to
the requests. See CSX Corp., 124 S.W.3d at 153; Mallinckrodt, 262 S.W.3d at 473.
CONCLUSION
We hold that the trial court did not abuse its discretion by denying ALIUS’s
plea to the jurisdiction, but the trial court did abuse its discretion by compelling
ALIUS to respond to Gulf Coast’s Requests for Production Numbers 2, 3, 4, 5, 6,
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7, 8, 9, 10, 13, 14, 16, and 17. “A discovery order that compels production beyond
the rules of procedure is an abuse of discretion for which mandamus is the proper
remedy.” In re Nat’l Lloyds Ins. Co., 449 S.W.3d 486, 488 (Tex. 2014) (orig.
proceeding). We are confident that the trial court will vacate its order compelling
discovery and the writ of mandamus shall issue only if the trial court fails to
comply with this opinion.
PETITION CONDITIONALLY GRANTED IN PART.
PER CURIAM
Submitted on April 10, 2015
Opinion Delivered April 28, 2015
Before Kreger, Horton, and Johnson, JJ.
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