dissenting.
I respectfully dissent. The question is whether, in meshing all the rules, Judge Clark abused his discretion in determining Lincoln was required to assert its privilege at the time it objected to the subpoena duces tecum. The majority acknowledges the requirements of Rules 199.2(b)(5) and 196.2(b) but concludes that these rules should be read with more flexibility than the rules state. Had Lincoln not made any objections, would it had to assert its privileges at the time of the deposition? I believe so. Therefore, the making of frivolous objections should not extend the time when Lincoln was required to assert its privileges.
When the trial judge made his determination of waiver, he had before him Lincoln’s objections to the subpoena duces tecum (attached as Appendix One) and its supplemental response to the subpoena duces tecum (attached as Appendix Two). A' comparison of the two documents shows the former makes an objection, which was ultimately overruled, while the latter either notes a document was produced or is attached and asserts the privilege. Common sense dictates that Lincoln either knew, or should have known, what privileges were to be asserted in the litigation. Requiring them to assert the privilege when they filed their objections is certainly a reasonable thing under all the rules. For this reason, the trial judge did not abuse his discretion and certainly did not act arbitrarily.2 Consequently, I respectfully dissent.
*439APPENDIX ONE
CAUSE NO. A-920,967-SC(l) ROBERT L. ABERNATHY, ET AL.
YS.
ACANDS, INC., ET AL.
IN THE DISTRICT COURT OF ORANGE COUNTY, TEXAS 128TH JUDICIAL DISTRICT
CAUSE NO. A-920,961-SC(26) JAMES MAJOR DRAKE, DECEASED, ET AL.
VS.
DRESSER INDUSTRIES, INC., FORMERLY A SUCCESSOR IN INTEREST TO HARBISON-WALKER REFRACTORIES COMPANY, ET AL.
IN THE DISTRICT COURT OF ORANGE COUNTY, TEXAS 128TH JUDICIAL DISTRICT
CAUSE NO. A920,961-SC(27) ALBERT TYSON SHEPARD, DECEASED, ET AL.
YS.
DRESSER INDUSTRIES, INC., FORMERLY A SUCCESSOR IN INTEREST TO HARBISON-WALKER REFRACTORIES COMPANY, ET AL.
IN THE DISTRICT COURT OF ORANGE COUNTY, TEXAS 128TH JUDICIAL DISTRICT
DEFENDANT LINCOLN’S OBJECTIONS TO PLAINTIFFS’ NOTICES OF VIDEOTAPED DEPOSITIONS OF THE PERSON MOST KNOWLEDGEABLE AND KEN BROWN AND THE RESPECTIVE SUBPOENAS DUCES TECUM
COMES NOW, The Lincoln Electric Company (“Defendant Lincoln”), one of the defendants in the above styled and numbered causes of action, and, pursuant to Texas Rule of Civil Procedure 176, makes and files this its Objections to the Plaintiffs’ Notices of Videotaped Depositions of the person most knowledgeable and Ken Brown and the respective Subpoenas Duces Tecum and, in support thereof, would show unto this honorable court as follows:
SUBPOENAS DUCES TECUM REQUESTED ITEMS
1. and 7. Any and all documents that indicate the identity of any person present during the manufacturing of asbestos containing welding rods after 1985.
RESPONSE: Defendant Lincoln objects to this request as it is overly broad, vague, ambiguous, and not document specific. As such, this request is tantamount to a fishing expedition, which has been specifically prohibited by Loftin v. Martin, 776 S.W.2d 145 (Tex.1989) and its progeny.
Defendant Lincoln further objects to this request as it is overly broad and not appropriately limited in scope to (1) the time at issue, i.e. the 1987 test and (2) the areas of testimony sought in the Notice of Videotaped Deposition. See: Texaco, Inc. v. Sanderson, 898 S.W.2d 813 (Tex.1995) and In Re American Optical Corp., 988 S.W.2d 711 (Tex.1998). To the extent that this request is not reasonably limited, then it exceeds the scope of discovery as defined in Texas Rules of Civil Procedure 192.3(a) as the information that exceeds a reasonable limitation is irrelevant, immaterial, inadmissible, and not reasonably calculated to lead to the discovery of admissible evidence.
*4402. and 8. Any and all documents that indicate the identity of any person present during the testing of asbestos-containing welding rods after 1985.
RESPONSE: Defendant Lincoln objects to this request as it is overly broad, vague, ambiguous, and not, document specific. As such, this request is tantamount to a fishing expedition, which has been specifically prohibited by Loftin v. Martin, 776 S.W.2d 145 (Tex.1989) and its progeny.
Defendant Lincoln further objects to this request as it is overly broad and not appropriately limited in scope to (1) the time at issue, i.e. the 1987 test and (2) the areas of testimony sought in the Notice of Videotaped Deposition. See: Texaco, Inc. v. Sanderson, 898 S.W.2d 813 (Tex.1995) and In Re American Optical Corp., 988 S.W.2d 711 (Tex.1998). To the extent that this request is not reasonably limited, then it exceeds the scope of discovery as defined in Texas Rules of Civil Procedure 192.3(a) as the information that exceeds a reasonable limitation is irrelevant, immaterial, inadmissible, and not reasonably calculated to lead to the discovery of admissible evidence.
3. and 9. Any and all documents that indicate a payment to any expert in attendance during the manufacturing or testing of asbestos containing welding rods after 1985.
RESPONSE: Defendant Lincoln to this request as it is overly broad, vague, ambiguous, and not document specific. As such, this request is tantamount to a fishing expedition, which has been specifically prohibited by Loftin v. Martin, 776 S.W.2d 145 (Tex.1989) and its progeny.
Defendant Lincoln further objects to this request as it is overly broad and not appropriately limited in scope to (1) the time at issue, i.e. the 1987 test and (2) the areas of testimony sought in the Notice of Videotaped Deposition. See: Texaco, Inc. v. Sanderson, 898 S.W.2d 813 (Tex.1995) and In Re American Optical Corp., 988 S.W.2d 711 (Tex.1998). To the extent that this request is not reasonably limited, then it exceeds the scope of discovery as defined in Texas Rules of Civil Procedure 192.3(a) as the information that exceeds a reasonable limitation is irrelevant, immaterial, inadmissible, and not reasonably calculated to lead to the discovery of admissible evidence.
4.and 10. Any and all documents that indicate any invoice from all experts, if any, who tested asbestos containing welding rods for Lincoln Electric Company after 1985.
RESPONSE: Defendant Lincoln objects to this request as it is overly broad, vague, ambiguous, and not document specific. As such, this request is tantamount to a fishing expedition, which has been specifically prohibited by Loftin v. Martin, 776 S.W.2d 145 (Tex.1989) and its progeny.
Defendant Lincoln further objects to this request as it is overly broad and not appropriately limited in scope to (1) the time at issue, i.e. the 1987 test and (2) the areas of testimony sought in the Notice of Videotaped Deposition. See: Texaco, Inc. v. Sanderson, 898 S.W.2d 813 (Tex.1995) and In Re American Optical Corp., 988 S.W.2d 711 (Tex.1998). To the extent that-this request is not reasonably limited, then it exceeds the scope of discovery as defined in Texas Rules of Civil Procedure 192.3(a) as the information that exceeds a reasonable limitation is irrelevant, immaterial, inadmissible, and not reasonably calculated *441to lead to the discovery of admissible evidence.
5. and 11. Any and all asbestos containing welding rods that were manufactured after 1985, that is (sic) in the actual or constructive possession of Lincoln Electric Company.
RESPONSE: Defendant Lincoln objects to this request as it is overly broad and not appropriately limited in scope to (1) the time at issue, i.e. the 1987 test and (2) the areas of testimony sought in the Notice of Videotaped Deposition. See: Texaco, Inc. v. Sanderson, 898 S.W.2d 813 (Tex.1995) and In Re American Optical Corp., 988 S.W.2d 711 (Tex.1998). To the extent that this request is not reasonably limited, then it exceeds the scope of discovery as defined in Texas Rules of Civil Procedure 192.3(a) as the information that exceeds a reasonable limitation is irrelevant, immaterial, inadmissible, and not reasonably calculated to lead to the discovery of admissible evidence
6. and 12. If no welding rods such as described in item 5 remain in the possession of Lincoln Electric Company, please bring any document that indicates:
a. the date the rods were disposed of
b. the number of whole or partial rods that were disposed of after testing was completed;
c. the present location where the rods can reasonable be expected to be found; and
d. the name of the person(s) who was last known or believed to have possession of the rods.
RESPONSE: Defendant Lincoln objects to this request as it is overly broad, vague, ambiguous, and not document specific. As such, this request is tantamount to a fishing expedition, which has been specifically prohibited by Loftin v. Martin, 776 S.W.2d 145 (Tex.1989) and its progeny.
Defendant Lincoln further objects to this request as it is overly broad and not appropriately limited in scope to (1) the time at issue, i.e. the 1987 test and (2) the areas of testimony sought in the Notice of Videotaped Deposition. See: Texaco, Inc. v. Sanderson, 898 S.W.2d 813 (Tex.1995) and In Re American Optical Corp., 988 S.W.2d 711 (Tex.1998). To the extent that this request is not reasonably limited, then it exceeds the scope of discovery as defined in Texas Rules of Civil Procedure 192.3(a) as the information that exceeds a reasonable limitation is irrelevant, immaterial, inadmissible, and not reasonably calculated to lead to the discovery of admissible evidence.
Respectfully Submitted,
STRONG PIPKIN BISSELL & LED-YARD, L.L.P.
/S/ JOHN G. BISSELL
John G. Bissell
Texas Bar No. 02356000
John W. Bridger
Texas Bar No. 02975860
1111 Bagby, Suite 2300
Houston, Texas 77002
(713) 651-1900
(713) 651-1920-Facsimile
ATTORNEYS FOR DEFENDANT, LINCOLN ELECTRIC COMPANY
CERTIFICATE OF SERVICE
This will verify that a true and correct copy of the foregoing document has been forwarded to Plaintiffs’ counsel by hand delivery to Glen Morgan, Reaud, Morgan & Quinn, 801 Laurel Avenue, Beaumont, Texas 77701, by certified mail, return re*442ceipt requested, to J. William Lewis, Environmental Litigation Group, P.C., 3529 7th Avenue South, Birmingham, Alabama 35222, and Karl Novak, Ness, Motley, Loadholt, Richardson & Poole, 28 Bridge-side Boulevard, Mount Pleasant, South Carolina 29465 and to all other .counsel of record (without exhibits) by e-mail on this 30th day of April, 2002.
/s/ JOHN G. BISSELL
John G. Bissell
APPENDIX TWO
CAUSE NO. A-920,967~SC(1) ROBERT L. ABERNATHY, ET AL.
v.
ACandS, INC., ET AL.
IN THE DISTRICT COURT OF ORANGE COUNTY, TEXAS 128TH JUDICIAL DISTRICT
CAUSE NO. A-920,961-SC(26) JAMES MAJOR DRAKE, DECEASED, ET AL
v.
DRESSER INDUSTRIES, INC., FORMERLY A SUCCESSOR-IN-INTEREST TO HARBISON-WALKER REFRACTORIES COMPANY, ET AL.
IN THE DISTRICT COURT OF ORANGE COUNTY, TEXAS 128TH JUDICIAL DISTRICT
CAUSE NO. A-920,961-SC(27) ALBERT TYSON SHEPARD, DECEASED, ET AL.
v.
DRESSER INDUSTRIES, INC., FORMERLY A SUCCESSOR-IN-INTEREST TO HARBISON-WALKER REFRACTORIES COMPANY, ET AL.
IN THE DISTRICT COURT OF ORANGE COUNTY, TEXAS 128TH JUDICIAL DISTRICT
THE LINCOLN ELECTRIC COMPANY’S SUPPLEMENTAL RESPONSE TO SUBPOENA DUCES TECUM TO KENNETH L. BROWN IN CONNECTION WITH DEPOSITION OF APRIL 30,2002
The Lincoln Electric Company makes this supplemental response to the subpoe*443na duces tecum served in connection with the taking of the deposition of Kenneth L. Brown April 30, 2002 as follows:
1. Any and all documents that indicate the identity of any person present during the manufacturing of asbestos containing welding rods after 1985.
RESPONSE: Please find attached document Bates No. LIABERMAR 0062. With the exception of this document, all responsive documents in the possession, custody or control of Kenneth L. Brown were produced at Mr. Brown’s deposition April 30, 2002. Defendant Lincoln Electric Company is withholding information or material which may be responsive to this request on the basis of the work product privilege and/or attorney-client privilege. Tex.R. Civ. P. 193.3(a).
2. Any and all documents that indicate the identity of any person present during the testing of asbestos-containing welding rods after 1985.
RESPONSE: All responsive documents in the possession, custody or control of Kenneth L. Brown were produced at Mr. Brown’s deposition April 30, 2002. Defendant Lincoln Electric Company is withholding information or material which may be responsive to this request on the basis of the work product privilege and/or attorney-client privilege. Tex.R. Civ. P. 193.3(a).
3. Any and all documents that indicate a payment to any expert in attendance during the manufacturing or testing of asbestos-containing welding rods after 1985.
RESPONSE: All responsive documents in the possession, custody or control of Kenneth L. Brown were produced at Mr. Brown’s deposition April 30, 2002. Defendant Lincoln Electric Company is withholding information or material which may be responsive to this request on the basis of the work product privilege and/or attorney-client privilege. Tex.R. Crv. P. 193.3(a).
4. Any and all documents that indicate any invoice from all experts, if any, who tested asbestos-containing welding rods for Lincoln Electric after 1985.
RESPONSE: Please find attached a document Bates No. LIABERMAR 0061. With the exception f this document, all responsive documents in the possession, custody or control of Kenneth L. Brown were produced at Mr. Brown’s deposition April 30, 2002. Defendant Lincoln Electric Company is withholding information or material which may be responsive to this request on the basis of the work product privilege and/or attorney-client privilege.
5. Any and all asbestos containing welding rods that were manufactured after 1985, that is [sic] in the actual or constructive possessive of Lincoln Electric Company.
RESPONSE: No responsive items are in the possession, custody or control of Kenneth L. Brown. Defendant Lincoln Electric Company is withholding information or material which may be responsive to this request on the basis of the work product privilege and/or attorney-client privilege. Tex.R. Civ. P. 193.3(a).
6. If no welding rods such as described in Item 5 remain in the possession of Lincoln Electric Company, please bring any document that indicates:
a) The date the rods were disposed of;
b) The number of whole or partial rods that were disposed of after testing was completed;
*444c) The present location where the rods can reasonably be expected to be found; and
d) The name of the person(s) who was last known or believed to have possession of the rods.
RESPONSE: No responsive items are in the possession, custody or control of Kenneth L. Brown. Defendant Lincoln Electric Company is withholding information or material which may be responsive to this request on the basis of the work product privilege and/or attorney-client privilege. Tex.R. Civ. P. 193.3(a).
Respectfully Submitted,
STRONG PIPKIN BISSELL & LED-YARD, L.L.P.
/S/ JOHN G. BISSELL
John G. Bissell
State Bar No. 02356000
Michael L. Samford
State Bar No. 17555650
John W. Bridger
State Bar No. 02975860
1111 Bagby, Suite 2300
Houston, Texas 77002
(713) 651-1900
(713) 651-1920-Facsimile
ATTORNEYS FOR DEFENDANT, LINCOLN ELECTRIC COMPANY
CERTIFICATE OF SERVICE
This will certify that a true and correct copy of the foregoing pleading has been furnished to counsel for plaintiff, Mr. Glen Morgan, Reaud, Morgan & Quinn, Inc., 801 Laurel Street, Post Office Box 26005, Beaumont, Texas 77701-6005, via facsimile and to all other counsel of record by e-mail transmission only on this 20 day of May, 2002.
/a/ JOHN G. BISSELL
John G. Bissell
CAUSE NO. A-920,967-SC(l) ROBERT L. ABERNATHY, et al.
v.
ACandS, INC., et al.
IN THE DISTRICT COURT OF ORANGE COUNTY, TEXAS 128TH JUDICIAL DISTRICT
CAUSE NO. A-920,961-SC(26) JAMES MAJOR DRAKE, DECEASED, et al.
v.
DRESSER INDUSTRIES, INC., FORMERLY A SUCCESSOR-IN-INTEREST TO HARBISON-WALKER REFRACTORIES COMPANY, et al.
IN THE DISTRICT COURT OF ORANGE COUNTY, TEXAS 128TH JUDICIAL DISTRICT
CAUSE NO. A-920,961-SC(27) ALBERT TYSON SHEPARD, DECEASED, et al.
v.
DRESSER INDUSTRIES, INC., FORMERLY A SUCCESSOR-IN-INTEREST TO HARBISON-WALKER REFRACTORIES COMPANY, et al.
IN THE DISTRICT COURT OF ORANGE COUNTY, TEXAS 128TH JUDICIAL DISTRICT
THE LINCOLN ELECTRIC COMPANY’S SUPPLEMENTAL RESPONSE TO PLAINTIFF’S NOTICE OF VIDEOTAPED DEPOSITION SUBPOENA DUCES TECUM
The Lincoln Electric Company makes this supplemental response to the subpoena duces tecum served in connection with the taking of the deposition of “the person(s) most knowledgeable about the test*445ing of welding rods by Lincoln Electric Company in 1977, and the manufacture and testing of asbestos containing welding rods in approximately 1987” on April 30, 2002, as follows:
[Note: This subpoena begins with 7]
7. Any and all documents that indicate the identity of any person present during the manufacturing of asbestos containing welding rods after 1985.
RESPONSE: Please find attached a document Bates No. LIABERMAR 0062. With the exception of this document, all responsive non-privileged documents were produced at the deposition April 30, 2002. Defendant Lincoln Electric Company is withholding information or material which may be responsive to this request on the basis of the work product privilege and/or attorney-client privilege. Tex.R. Civ. P. 193.3(a).
8. Any and all documents that indicate the identity of any person present during the testing of asbestos-containing welding rods after 1985.
RESPONSE: All responsive non-privileged documents were produced at the deposition April 30, 2002. Defendant Lincoln Electric Company is withholding information or material which may be responsive to this request on the basis of the work product privilege and/or attorney-client privilege. Tex.R. Civ. P. 193.3(a).
9. Any and all documents that indicate a payment to any expert in attendance during the manufacturing or testing of asbestos-containing welding rods after 1985.
RESPONSE: Defendant Lincoln Electric Company is withholding information or material which may be responsive to this request on the basis of the work privilege and/or attorney-client privilege. Tex.R. Civ. P. 193.3(a).
10. Any and all documents that indicate any invoice from all experts, if any, who tested asbestos-containing welding rods for Lincoln Electric after 1985.
RESPONSE: Please find attached document Bates Nos. LIABERMAR 0061 and 0063. With the exception of these documents, all responsive non-privileged documents were produced at the deposition on April 30, 2002. Defendant Lincoln Electric Company is withholding information or material responsive to this request on the basis of the work product privilege and/or attorney-client privilege. Tex.R. Civ. P. 193.3(a).
11. Any and all asbestos containing welding rods that wee manufactured after 1985, that is [sic] in the actual or constructive possession of Lincoln Electric Company.
RESPONSE: Defendant Lincoln Electric Company is withholding information or material which may be responsive to this request on the basis of the work product privilege and/or attorney-client privilege. Tex.R. Civ. P. 193.3(a).
12. If no welding rods such as described in Item 5 remain in the possession of Lincoln Electric Company, please bring any document that indicates:
a) The date the rods were disposed of;
b) The number of whole or partial rods that were disposed of after testing was completed;
c) The present location where the rods can reasonably be expected to be found; and
d) The name of the person(s) who was last known or believed to have possession of the rods.
RESPONSE: Defendant Lincoln Electric Company is withholding information or material which may be responsive to this request on the basis of the work *446product privilege and/or attorney-client privilege. Tex.R. Civ. P. 193.3(a).
Respectfully Submitted,
STRONG PIPKIN BISSELL & LED-YARD, L.L.P.
/S/ JOHN G. BISSELL
John G. Bissell
State Bar No. 02356000
Michael L. Samford
State Bar No. 17555650
John W. Bridger
State Bar No. 02975860
1111 Bagby, Suite 2300
Houston, Texas 77002
(713) 651-1900
(713) 651-1920-Facsimile
ATTORNEYS FOR DEFENDANT, LINCOLN ELECTRIC COMPANY
CERTIFICATE OF SERVICE
This will certify that a true and correct copy of the foregoing pleading has been furnished to counsel for plaintiff, Mr. Glen Morgan, Reaud, Morgan & Quinn, Inc., 801 Laurel Street, Post Office Box 26005, Beaumont, Texas 77701-6005, via facsimile and to all other counsel of record by e-mail transmission only on this 20 day of May, 2002.
/s/ JOHN G. BISSELL
John G. Bissell
. The trial judge is extremely experienced in multi-party toxic tort litigation.