Chapa v. Garcia

HECHT, Justice,

dissenting.

I dissent. Before mandamus relief can properly issue, relators must demonstrate that the trial court clearly abused its discretion in denying discovery, and that they have no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833 (Tex.1992). The plurality opinion concludes that three or four additional pages out of the thousands of Remington documents the trial court reviewed in camera should be produced. Only one Justice would require production of more materials. The plurality completely ignores Remington’s claims that its documents are protected by a trade secret privilege and that if produced at all they should be subject to a protective order. Even assuming that the plurality’s conclusion is correct, the trial court’s failure to order production of three or four pages has not been shown to be in any sense a clear abuse of discretion. In Walker we said that generally, an ordinary appeal is not adequate to correct trial court discovery errors in three instances: (1) when the appellate court will be unable to cure the error, as when privileged information is ordered produced; (2) when a party’s ability to present a viable claim or defense is vitiated or severely compromised; or (3) when the trial court disallows discovery and the requested materials cannot be made a part of the appellate record. Id. at 843. Because the trial court refused to compel production of the documents at issue, we are not presented with an example of the first instance. Neither is the second instance realized in this case; relator’s attorney advised the court at oral argument that he “[has] a case right now” even without these documents. As for the third instance, because these documents have been made a part of a mandamus record, they can likewise be made a part of the appellate record.

From the beginning, the Court’s sole apparent purpose in this case has been to ensure that relators obtain additional infor*680mation. The Court granted relators’ motion for leave to file a petition for mandamus before the trial court had even issued a written order. When it discovered this deficit, which would ordinarily have been fatal to the petition, Tex.R.App.P. 121(a)(4), instead of dismissing the petition, it ordered the trial court to reduce its ruling to writing, without any showing that the trial court had refused to do so and without any request from relators. 33 Tex.Sup.CtJ. 308 (motion for leave to file granted March 21, 1990), and 33 Tex.Sup.Ct.J. 617 (noting issuance of unpublished order June 27, 1990).1 That purpose has now been accomplished, however so slightly. It is not the best use of this Court’s limited resources to micromanage discovery in the trial courts as we do today.

PHILLIPS, C.J., and GONZALEZ and CORNYN, JJ., join in this dissenting opinion.

. The June 27, 1990 unpublished order provided:

IT IS HEREBY ORDERED THAT The Honorable Ricardo Garcia, Presiding Judge, 229th District Court, Duval County, is directed to reduce to writing his oral ruling on pending motions of Plaintiffs and Defendants in Lauro Chapa et. al. v. Remington Arms Co. et al., Cause No. 13,461 in connection with his in camera inspection of documents of Remington Arms Co. relating to its New Bolt Action Rifle program ("NBAR”). See Jampole v. Touchy, 673 S.W.2d 569 (Tex.1984) (trial court's denial of discovery of alternative designs utilized in non-identical products constitutes an abuse of discretion).
IT IS FURTHER ORDERED that The Honorable Ricardo Garcia comply by filing such written ruling with the Clerk of the Texas Supreme Court on or before July 27, 1990.