In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-21-00385-CV
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IN RE NICHOLAS MARTENY
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Original Proceeding
60th District Court of Jefferson County, Texas
Trial Cause No. B-199855
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MEMORANDUM OPINION
Relator Nicholas Marteny filed a petition for a writ of mandamus and a motion
for temporary relief in a legal malpractice suit. Marteny complains the trial court
clearly abused its discretion by denying his motion to compel written discovery of
settlements obtained in the BP Deepwater Horizon litigation by other clients of the
defendants, Real Parties in Interest Brent W. Coon, PC d/b/a Brent Coon &
Associates and Brent Coon (collectively “BCA”). Marteny claims the trial court’s
denial of the requested discovery severely compromises his ability to present any
case at all because his legal expert’s opinion regarding Marteny’s damages will be
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conclusory if he is unable to analyze the settlements. After reviewing Relator’s
petition and the response of the Real Parties in Interest, we conclude that Relator has
failed to establish he is entitled to the relief sought in his petition.
In 2020, we reversed the trial court’s grant of BCA’s traditional motion for
summary judgment, holding in part that BCA failed to conclusively negate damages
to Marteny, a merchant mariner, resulting from the government-imposed
moratorium on offshore drilling following the Deepwater Horizon oil spill. Marteny
v. Coon, 2020 WL 5666567, at *5-6 (Tex. App.—Beaumont Sept. 24, 2020, no pet.)
(mem. op.). Noting that BCA filed suit on behalf of over 4,000 plaintiffs arising from
the same oil spill, some of whom had moratoria-only claims, and that BCA claimed
the information concerning other clients was privileged, we held the trial court erred
by denying Marteny’s request to defer ruling on the motion for summary judgment
until he could obtain written discovery regarding settlement information of other
clients similarly situated to him, who sustained economic losses as a result of the oil
spill and subsequent moratoria. Id. at *7. We remanded the case to the trial court to
order the production of an adequate privilege log and development of an affidavit or
other testimony, so that the trial court could properly assess the applicability of the
asserted privileges. Id. at *8.
On remand, Marteny filed a motion to rule on his motion to compel discovery.
BCA responded that whether there were any responsive documents depended upon
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whether a “similar client” was limited to a BCA client who pleaded and answered
discovery with damages from the BP Deepwater Horizon oil spill with only
moratorium damages or also included any individual who received a recovery from
BP. On January 19, 2020, the trial court ordered production but reconsidered after
the parties submitted additional briefing and BCA argued that Marteny’s discovery
requests were a fishing expedition seeking privileged information and that any
claims that resulted in settlement had been made by individuals whose losses were
due in part to the moratorium and in part to the oil spill itself. BCA argued that the
privilege log and spreadsheet of mixed-claim settlements that it provided to the trial
court for in-camera inspection demonstrated that if produced the information would
be of little use to Marteny unless BCA provided additional privileged information
about its clients. BCA filed amended objections to Marteny’s second set of requests
for production, asserting therein that BCA had identified 444 clients in the marine
transportation, marine industry, refinery/oil industry/oil rig moratorium categories,
and “a small subset of Clients who appear to have been Merchant Marines[,]” and
BCA complained that Marteny’s request for information about “similar clients”
“amounts to a fishing expedition” and required disclosure of information protected
by attorney-client and work product privileges and subject to a confidentiality order
issued by the MDL court.
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The trial court held a hearing on January 21, 2021. BCA explained that some
of its clients worked in an offshore capacity but were involved in a shrimping
settlement, others were oil rig workers, and some were small boat operators like
Marteny. Marteny argued BCA’s privilege log failed to meet the requirements of
Rule 193. 1 On January 27, 2021, BCA submitted an amended privilege log that
identified clients by an identification number and noted the general occupation type
and whether the client was a merchant marine, but redacted claim submissions, the
amount for settlement demands, the final settlement amounts, and the personal
identifying information for each client. The trial court reviewed an unredacted
privilege log in camera, as well as an affidavit that quoted the language of the
confidentiality order imposed by the federal MDL court that presided over the
settlements about which Marteny sought to compel discovery.2
On October 7, 2021, the trial court denied Marteny’s motion to compel
without elaboration. In his mandamus petition, Marteny argues the information BCA
withheld is permissible discovery in a legal malpractice case stemming from mass
tort litigation. “[L]egal-malpractice damages are the difference between the result
1See Tex. R. Civ. P. 193.3(b) (requiring withholding party on request to
describe the information or materials withheld to serve a response that, without
revealing the privileged information itself or otherwise waiving the privilege,
enables other parties to assess the applicability of the privilege and asserts a specific
privilege for each item or group of items withheld).
2The trial court provided the documents that were reviewed in camera to this
Court.
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obtained for the client and the result that would have been obtained with competent
counsel.” Elizondo v. Krist, 415 S.W.3d 259, 263 (Tex. 2013). In Elizondo, the Court
noted that, because the defendant in that case had settled thousands of cases and
made the business decision not to try any cases to a verdict, an expert could base his
opinion of malpractice damages on a comparison of what similarly situated plaintiffs
obtained from the same defendant. Id. “[I]n a mass tort litigation involving thousands
of similar claimants and arising out of the same event, the expert measures the ‘true’
settlement value of a particular case by persuasively comparing all the circumstances
of the case to the settlements obtained in other cases with similar circumstances
arising from the event.” Id.
Marteny argues the trial court abused its discretion by failing to compel
discovery because BCA failed to produce an adequate privilege log, failed to
produce the documents identified in the privilege log for in-camera inspection, failed
to make a prima facie case of privilege, and provided insufficient evidence of the
confidentiality order because it was based on information and belief of the affiant.
Marteny argues the trial court abused its discretion by sustaining BCA’s objection
that the discovery requests were an impermissible “fishing expedition” because BCA
obscured the objection in violation of Rule 193.2(e) by repeating the same objection
to each discovery request. See Tex. R. Civ. P. 193.2(e) (“An objection that is not
made within the time required, or that is obscured by numerous unfounded
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objections, is waived unless the court excuses the waiver for good cause shown.”).
He argues information about BCA’s “similarly situated clients seeking moratorium
losses” is the best evidence of Marteny’s damages. See Elizondo, 415 S.W.3d at 263.
According to Marteny, counsel for BCA could identify some 444 similarly situated
clients with moratorium claims but who, unlike Marteny, received settlements.
Texas Rule of Civil Procedure 192.3 permits a party to “obtain discovery
regarding any matter that is not privileged and is relevant to the subject matter of the
pending action, whether it relates to the claim or defense of the party seeking
discovery or the claim or defense of any other party.” Tex. R. Civ. P. 192.3(a).
Discovery requests must be “reasonably tailored to include only matters relevant to
the case.” In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998) (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.” In re CSX Corp.,
124 S.W.3d 149, 153 (Tex. 2003) (orig. proceeding). “Overbroad requests for
irrelevant information are improper whether they are burdensome or not[.]” In re
Allstate Cty. 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). An overbroad discovery
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request is one that seeks irrelevant information that is not properly tailored to the
dispute at hand as to time, place, and subject matter. In re Nat’l Lloyds Ins. Co., 507
S.W.3d 219, 226 (Tex. 2016) (orig. proceeding); see also In re Alford Chevrolet-
Geo, 997 S.W.2d 173, 180 n.1 (Tex. 1999) (orig. proceeding) (“We have identified
as overbroad requests encompassing time periods, products, or activities beyond
those at issue in the case—in other words, matters of questionable relevancy to the
case at hand.”). When a party propounds overly broad requests, the trial court must
either sustain the objection or act to narrowly tailor the requests. In re Mallinckrodt,
Inc., 262 S.W.3d 469, 474 (Tex. App.—Beaumont 2008, orig. proceeding).
BCA repeatedly complained to the trial court that Marteny’s definition of
“similarly situated clients” was too vague to discern which of its clients were
“similar situated” and which were not. Marteny defined the term as
those clients or plaintiffs you represented in claims with the GCCF, the
Settlement Program, any other settlement or claim program relating to
the spill, or in litigation against BP arising out of the Deepwater
Horizon Oil Spill that occurred on or about April 20, 2010 and who
were oil service, exploration or marine workers, providers, or suppliers
that, like Marteny, claimed to suffer economic losses as a result of the
oil spill or the moratorium issued by the United States Department of
the Interior following the spill.
The discovery requests required BCA to produce information about oil rig workers
and persons whose occupations were not at all similar to Marteny’s occupation as a
small boat operator. More importantly, it should be noted that Marteny’s claims were
solely for moratorium damages; however, the discovery requests required BCA to
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produce information not only for moratorium damage claims, but also for oil spill
damage claims. Faced with a facially overbroad request for discovery, the trial court
had the discretion to narrowly tailor the request or to deny the motion to compel.
We conclude Marteny has not shown that the trial court clearly abused its discretion.
Accordingly, we deny the petition for a writ of mandamus. See Tex. R. App. P.
52.8(a). The motion for temporary relief is denied as moot.
PETITION DENIED.
PER CURIAM
Submitted on December 21, 2021
Opinion Delivered February 3, 2022
Before Golemon, C.J., Kreger and Horton, JJ.
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