dissenting. Over a decade ago, this court clarified Arkansas law whether the extraordinary writs of prohibition or certiorari could lie in discovery matters. This court said “no” in the case of Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993) (court held the writ of certiorari would not He to prevent the trial court’s order to require a nonparty physician, Dr. Lupo, to testify by deposition as an expert witness in a suit filed against another physician). Our court has steadfastly adhered to its holding in Lupo since 1993. The majority court’s decision will be difficult to explain when this court is again asked to issue a writ of certiorari in a discovery matter. The bright-line rule set out in Lupo is no longer clear.
In the case of Conner v. Simes, 355 Ark. 422, 139 S.W.3d 476 (2003), our court reviewed its cases pertaining to writs of certiorari and explained why this court has held such writs do not lie in discovery issues.1 The court in Conner reiterated the standards for determining the propriety of a writ of certiorari as follows:
A writ of certiorari is extraordinary relief, and we will grant it only when there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record. In determining its application, we will not look beyond the face of the record to ascertain the actual merits of a controversy, or to control discretion, or to review a finding of fact, or to reverse a trial court’s discretionary authority. A writ of certiorari lies only where it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, and there is no other adequate remedy.
(Emphasis added.)
In the present case, the plaintiffs sued the defendants, alleging the defendants’ negligence caused (1) the collision between their two vehicles, and (2) the injuries the plaintiffs sustained. Plaintiffs sought discovery by subpoenaing the Arkansas Democrat-Gazette’s news photographer, Stephen Thornton, to bring to a deposition the twenty-five photos Thornton had taken of the aftermath of the scene of the parties’ accident. Neither Thornton nor the Democrat-Gazette was a party to the lawsuit. Plaintiffs’ counsel offered to pay a reasonable fee for the production of the photos, but, when Thornton said the fee would be $2,425.00, plaintiffs’ counsel objected. The newspaper then moved to quash the subpoena, which the trial judge denied. The judge directed the newspaper and Thornton to provide plaintiffs the photos, and concluded by saying, “We will fight about the money later.”
The situation now before us is most similar to Lupo. In Lupo, the plaintiffs had filed suit against defendants, and in preparation for trial, plaintiffs’ counsel subpoenaed Dr. Lupo, who was not a party to the lawsuit. In fact, Lupo was an involuntary expert witness who subsequently filed a petition for a writ of certiorari from our court to prevent the trial court from ordering him to testify at any deposition. The Lupo court denied certiorari, stating that, under Ark. R. Civ. P. 26(a), a party has an absolute right to take a deposition and if the deponent is asked questions that are inappropriate or unreasonable, he has a right to refuse to answer the questions and request a protective order. In addition, under Rule 26(c), upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. (Emphasis added.) While our general rule is that this court cannot act upon an appeal taken by one not a party to the action below, there is an equally long-recognized exception to the general rule for one pecuniarily affected by a judgment. See In the Matter of Cindy Lee Allen, 304 Ark. 222, 800 S.W.2d 715 (1990). It is clear that, while the Democrat-Gazette and Thornton may not be entitled to an interlocutory appeal, unless the trial court grants an appeal under Rule 54(b), they may appeal at the end of the trial when the trial court enters a final judgment and order in the case.
Here, though the Democrat-Gazette and Thornton did not request a protective order, the trial judge made it clear that she would consider the reasonable fee issue later. Clearly, the trial court has the authority to protect the newspaper’s and Thornton’s interests, and, at the same time, permit the plaintiffs to have the necessary photos to help plaintiffs make their case against the defendants. For example, the trial judge could require a sufficient amount be placed in the registry of the court to cover all contingencies; when the trial judge later determines a reasonable fee amount, the amount necessary to cover the costs in reproducing the required photos will be available. If the Democrat-Gazette disagreed with the trial court, the newspaper could clearly appeal the trial court’s ruling at the trial’s end.
Everyone agrees that the Democrat-Gazette is not seeking to withhold the photographs from the plaintiffs, but, instead, it merely seeks to include the value of its copyright when figuring the fee amount for its photos. The trial judge plainly has the discretion to determine what a reasonable fee would be in this case. Certiorari is not available when (1) there is another adequate remedy, such as an appeal, and (2) the challenged decision is one within the discretion of the trial court. See Manila School Dist. No. 15 v. Wagner, 357 Ark. 20, 159 S.W.3d 285 (2004).
For the reasons above, I would deny certiorari.
The majority opinion reads that, while this case raises an interesting discovery problem under Rule 45, it is not merely a discovery issue because of the unique copyright the Democrat-Gazette owns in its news photographs that the newspaper stores. However, this unquestionably involves a discovery matter, commenced by the plaintiffs seeking photo evidence of the scene of the parties’ accident. In short, the issue raised by the Democrat-Gazette is all about money: Can the newspaper charge a fee for its photographs that will include its copyright costs?