In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-19-00098-CV ___________________________
IN RE SSCP MANAGEMENT, INC.; SDHAROD ENTERPRISES, INC.; APPLE TEXAS RESTAURANTS, INC.; TEXAS APPLE, LLC; SRS REAL ESTATE PARTNERS, LLC; AND SRS NATIONAL NET LEASE GROUP, LP, Relators
Original Proceeding Trial Court No. CV18-1720
Before Pittman, Birdwell, and Womack, JJ. Opinion by Justice Pittman Justice Womack concurs without opinion. OPINION
INTRODUCTION
“It’s deja vu all over again” as this court journeys on its latest foray through the
ever evolving battlefields of the Texas Citizens Participation Act (TCPA). 1 See Yogi
Berra, The Yogi Book: I Really Didn’t Say Everything I Said! 45 (1999). In our latest quest,
we are tasked with exploring the amount of discovery allowed once a motion to dismiss
under the TCPA has been filed but not yet ruled upon by the trial court.
Specifically, in three issues in their petition for writ of mandamus, Relators SSCP
Management, Inc. (SSCP); SDharod Enterprises, Inc. (SDharod); Apple Texas
Restaurants, Inc. (Apple Texas); Texas Apple, LLC (Texas Apple); SRS Real Estate
Partners, LLC (SRS Real Estate); and SRS National Net Lease Group, LP (SRS
National) (collectively, Defendants) complain that the trial court abused its discretion
when it ordered them to respond to numerous discovery requests during the pendency
of their TCPA motions to dismiss. They contend that “good cause” was not shown
justifying such discovery, the permitted discovery was not “specified and limited” or
“relevant to the motion[s to dismiss]” as required by the TCPA, see Tex. Civ. Prac. &
Rem. Code Ann. § 27.006(b), and their appellate remedy is inadequate. Defendants ask
us to vacate the trial court’s March 1, 2019 Discovery Order allowing Real Party In
1 See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001–.011. The TCPA is commonly referred to as Texas’s “Anti-SLAPP” statute, so-called because the TCPA seeks to limit “Strategic Lawsuit[s] Against Public Participation.” See DeAngelis v. Protective Parents Coal., 556 S.W.3d 836, 841 n.2 (Tex. App.—Fort Worth 2018, no pet.).
2 Interest Sutherland/Palumbo, LLC (“Sutherland”) to conduct extensive discovery.
Because such expansive discovery runs afoul of the express language of the TCPA, with
the reservations stated herein, we conditionally grant relief.
BACKGROUND
I. Shotgun Blasts Are Exchanged: Sutherland Files a Multi-Cause of Action Lawsuit and Defendants Return Fire with Omnibus Motions to Dismiss Under the TCPA.
After a commercial real-estate transaction went awry, Sutherland filed its original
petition against Defendants on November 20, 2018. On January 22, 2019, Sutherland
amended its petition seeking money damages with a volley of ten unique causes of
action, including breach of contract, fraud, fraud by nondisclosure, fraudulent
inducement, fraud in a real-estate transaction, negligent misrepresentation, conspiracy,
violations of the Texas Deceptive Trade Practices Act, and common-law and statutory
false advertising. Along with the amended petition, Sutherland served Defendants with
a bevy of written discovery requests, including:
• Plaintiff’s First Set of Interrogatories to Defendant SRS National, containing 13 interrogatories, some of which included multiple subparts;
• Plaintiff’s First Set of Interrogatories to Defendant SSCP, containing 23 interrogatories, some of which included multiple subparts;
• Plaintiff’s First Request for Production to Defendants SSCP, SDharod, Apple Texas, and Texas Apple, which included 110 requests for production; and
• Plaintiff’s First Request for Production to SRS Defendants, which included 87 requests for production to SRS Real Estate and SRS National.
3 In response to the amended petition, on January 28, 2019, Defendants returned
fire by filing motions to dismiss Sutherland’s claims under the dismissal provisions of
the TCPA (the TCPA Motions to Dismiss). 2 See Tex. Civ. Prac. & Rem. Code Ann.
§ 27.003. Defendants contended the lawsuit is subject to dismissal under the TCPA
because it affects the exercise of their constitutional rights of freedom of speech and
association. The day after Defendants filed their TCPA Motions to Dismiss, Sutherland
countered with a motion to conduct discovery (Motion to Conduct Discovery). The
Motion to Conduct Discovery did not include any specific discovery requests but
attached copies of the comprehensive written discovery served with the amended
petition on January 22, 2019, as well as the correspondence from Sutherland’s attorney
to Defendants’ attorneys requesting corporate representative depositions from each
Defendant on forty-three distinct deposition topics. The trial court conducted a hearing
on the Motion to Conduct Discovery on February 4, 2019, and granted the motion
2 The TCPA Motion to Dismiss filed by SSCP, SDharod, Apple Texas and Texas Apple seeks to dismiss all of Sutherland’s causes of action except its breach of contract claim. The TCPA Motion to Dismiss filed by SRS Real Estate and SRS National is even more far-reaching; it seeks the early dismissal of all of Sutherland’s causes of action and, thus, its entire lawsuit. For the purposes of this opinion, we offer no comment as to the actual merits of the TCPA Motions to Dismiss; however, we repeat our recent observation that the “TCPA is not a Swiss army knife, a tool always ready to obtain the early dismissal of every objectionable case or controversy.” Beving v. Beadles, 563 S.W.3d 399, 408 n.8 (Tex. App.—Fort Worth 2018, pet. denied); cf. Kawcak v. Antero Res. Corp., No. 02-18-00301-CV, 2019 WL 761480, at *17 (Tex. App.—Fort Worth Feb. 21, 2019, pet. filed) (The “plain meaning of the word ‘common’ in TCPA section 27.001(2)’s definition of ‘the right of association’ requires more than two tortfeasors conspiring to act tortiously for their own selfish benefit.”).
4 without limitation on February 6, 2019, allowing Sutherland to proceed with its
requested discovery.
II. The Battle Lines are Drawn: Defendants File Their First Petition for Writ of Mandamus.
Their swords now unsheathed, on February 18, 2019, Defendants filed an
emergency motion with the trial court requesting that all discovery be stayed pending
the resolution of a petition for writ of mandamus that it intended to file in this court.
Two days later, on February 20, 2019, Defendants filed their first petition for writ of
mandamus in this court challenging the order on the Motion to Conduct Discovery.
The same day, Sutherland filed a response to Defendants’ emergency motion to stay in
the trial court indicating that it would voluntarily remove or modify some of the
previously granted discovery requests (Modified Motion to Conduct Discovery). On
February 21, 2019, the trial court granted the emergency motion to stay all discovery
pending the resolution of the first petition for writ of mandamus.
A hearing was conducted on February 27, 2019 on Sutherland’s Modified
Motion to Conduct Discovery, and on March 1, 2019, the trial court entered an order
granting the motion (the Discovery Order). As a result, on that same day, this court
dismissed Defendants’ first petition for writ of mandamus as moot.
Although the record before the Court is somewhat muddled, it appears, by a
conservative count, that the Discovery Order entered by the trial court on March 1 is
only slightly less comprehensive than the original order. It allows Sutherland fifty-nine
5 requests for production from four of the six Defendants, fifty-eight requests for
production from two of the six Defendants, eleven interrogatories from SRS Real
Estate, seven interrogatories from SSCP, and at least six four-hour depositions from
each of Defendants’ corporate representatives on the original, unmodified forty-three
deposition topics prior to the hearing on the TCPA Motions to Dismiss.
III. The Battle Continues: Defendants File Their Second Petition for Writ of Mandamus.
Contending that Sutherland did not comply with the TCPA’s requirements in
order to conduct discovery pending their TCPA Motions to Dismiss, on March 20,
2019, Defendants refused to surrender and filed their second petition for writ of
mandamus in this court seeking relief from the Discovery Order.
DISCUSSION
In three issues, Defendants contend that the trial court abused its discretion in
issuing the Discovery Order and ordering them to respond to the discovery requests
prior to the hearing on the TCPA Motions to Dismiss because (1) Sutherland did not
show “good cause” entitling it to the requested discovery; (2) the ordered discovery is
improper because it is not “specified” and “limited” to the TCPA Motions to Dismiss;
and (3) Defendants are without an adequate remedy at law and are entitled to mandamus
relief. Sutherland responds that it demonstrated good cause entitling it to discovery
under the TCPA and Defendants failed to show that the trial court acted arbitrarily and
unreasonably in issuing the Discovery Order.
6 I. Standard of Review
Mandamus relief is proper only to correct a clear abuse of discretion when there
is no “adequate remedy at law, such as a normal appeal.” In re H.E.B. Grocery Co., L.P.,
492 S.W.3d 300, 304 (Tex. 2016) (orig. proceeding) (quoting State v. Walker, 679 S.W.2d
484, 485 (Tex. 1984) (orig. proceeding)). A party lacks an adequate remedy on appeal
when the benefits of mandamus outweigh its detriments. In re Prudential Ins. Co. of Am.,
148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding). A clear failure by the trial court to
analyze or apply the law correctly constitutes an abuse of discretion. Walker v. Packer,
827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). “A clear abuse of discretion occurs
when a trial court’s action is so arbitrary and unreasonable as to amount to a clear and
prejudicial error of law.” In re IntelliCentrics, Inc., No. 02-18-00280-CV,
2018 WL 5289379, at *2 (Tex. App.—Fort Worth Oct. 25, 2018, orig. proceeding)
(mem. op.) (citations omitted).
Moreover, mandamus is appropriate to correct “[a]n order compelling discovery
that is well outside the proper bounds.” In re Am. Optical Corp., 988 S.W.2d 711,
713 (Tex. 1998) (orig. proceeding); In re Cho, No. 02-17-00254-CV, 2017 WL 3911002,
at *1 (Tex. App.—Fort Worth Sept. 7, 2017, orig. proceeding) (mem. op.). The burden
of establishing an abuse of discretion and no adequate remedy on appeal “is on the
party resisting discovery, and this burden is a heavy one.” In re CSX Corp., 124 S.W.3d
149, 151 (Tex. 2003) (orig. proceeding). When determining whether the trial court
abused its discretion, we are mindful that the purpose of discovery is to seek the truth
7 so that disputes may be decided by what the facts reveal, not by what facts are
concealed. In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (orig. proceeding).
Generally, the rules governing discovery do not require that the information sought be
admissible; it is enough that the information appears reasonably calculated to lead to
the discovery of admissible evidence. See Tex. R. Civ. P. 192.3(a). However, this broad
grant is limited by the legitimate interests of the opposing party to avoid overly broad
requests, harassment, or disclosure of privileged information. Am. Optical Corp.,
988 S.W.2d at 713; see also Tex. R. Civ. P. 192.4 (“Limitations on Scope of Discovery”).
The TCPA also restricts this broad grant, permitting only “specified and limited
discovery relevant to the motion [to dismiss]” upon a showing of “good cause.” Tex.
Civ. Prac. & Rem. Code Ann. § 27.006(b) (emphasis added); see Walker v. Schion,
420 S.W.3d 454, 458 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (holding abuse
of discretion standard applies in reviewing order on TCPA discovery motion). “And a
clear abuse of discretion occurs when the trial court orders discovery exceeding that
which is permitted by the rules.” IntelliCentrics, 2018 WL 5289379, at *2; see CSX Corp.,
124 S.W.3d at 152 (explaining that an abuse of discretion occurs when the discovery
ordered “exceeds that permitted by the rules of procedure”).
II. Procedures for Conducting Discovery Under the TCPA
The TCPA was passed “to encourage and safeguard the constitutional rights of
persons to petition, speak freely, associate freely, and otherwise participate in
government to the maximum extent permitted by law and, at the same time, protect the
8 rights of a person to file meritorious lawsuits for demonstrable injury.” Tex. Civ. Prac.
& Rem. Code Ann. § 27.002; see D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429,
433–35 (Tex. 2017) (explaining that the TCPA seeks to balance the tension between
protecting First Amendment freedoms and preserving the rights of individuals to file
meritorious lawsuits); see also Beving, 563 S.W.3d at 403. In furtherance of these ends, at
an early stage in litigation, a defendant may file a motion to dismiss a legal action
pursuant to the TCPA. Tex. Civ. Prac. & Rem. Code Ann. § 27.003. “Except as
provided by Section 27.006(b),” the filing of a motion to dismiss under Section
27.003 stays “all discovery in the legal action” until the trial court rules on the motion.
Id. § 27.003(c). Section 27.006(b) provides an exception to the mandatory suspension
of discovery by allowing only “specified and limited discovery relevant to the motion”
on the court’s own motion or a party’s motion “and on a showing of good cause.” Id.
§ 27.006(b); see In re SPEX Group US LLC, No. 05-18-00208-CV, 2018 WL 1312407, at
*4 (Tex. App.—Dallas Mar. 14, 2018, orig. proceeding) (mem. op.).
If the party seeking discovery showed good cause and the specified and limited
discovery has been conducted, the dismissal hearing must occur no later than 120 days
after service of the motion to dismiss. Tex. Civ. Prac. & Rem. Code Ann. § 27.004(c).
At that hearing, the TCPA dismissal movant must first show that it is entitled to bring
the motion to dismiss. See id. § 27.005(b). If the movant is successful, the burden shifts
to the respondent to establish “by clear and specific evidence a prima facie case for each
essential element of the claim in question,” or face dismissal of the claim or claims in
9 question. Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018); see also Tex. Civ. Prac. &
Rem. Code Ann. § 27.005(c).
III. Sutherland Established “Good Cause,” Entitling It to “Specified and Limited” Discovery.
In their first issue, Defendants contend that the trial court abused its discretion
in issuing the Discovery Order because Sutherland failed to make a good-cause showing
that it was entitled to discovery pursuant to Section 27.006(b) of the TCPA. Tex. Civ.
Prac. & Rem. Code Ann. § 27.006(b). We disagree.
In its Motion to Conduct Discovery filed on January 29, 2019, Sutherland
contended that discovery was necessary prior to the hearing on the TCPA Motions to
Dismiss. Among other things, Sutherland argued that
[t]his is a case of nondisclosure and fraud, thus Defendants are [in] possession of the vast majority of relevant documentation and their witnesses have knowledge of the fraud they committed in this matter. Defendants have articulated that Plaintiff cannot provide by “clear and specific evidence” a single element of its claims and causes of action. Being that Defendants have failed and refused to respond to discovery and have not provided a single responsive document, Plaintiff is left in a precarious position to argue only the information that it currently has in its possession while Defendants continue to hoard and hide documents and information that further show their fraud and failure to disclose.
More specifically, Sutherland’s attorneys argued that the requested discovery was
relevant to the TCPA Motions to Dismiss, stating:
I don’t know if you’ve had the opportunity to read their motions to dismiss; but there’s an entire section going through every cause of action that we’ve stated, saying that we can’t put on a single element. Not a: This element is missing. This one. This one. Not one.
10 So, when you look at what they just brought you—so, I’m asking for the communications they had between themselves, which goes to what knowledge the Defendant here—which is one of the elements of the claim against them. What knowledge they had of the fraudulent creation of this lease to inflate the value of the property.
....
We want to know what their involvement, together with the property—because what the evidence will ultimately likely show is—is that they’ve been involved in these type of transactions all across the State. Now, do I have those documents? I’ve seen postings, but I don’t have the documents.
Also, at the hearing on the Modified Motion to Conduct Discovery, held on
February 27, 2019, Sutherland contended (1) the requested discovery was necessary to
respond to the motions to dismiss and (2) this case involves “multiple causes of action[],
multiple defendants where they’ve challenged every single element [in their TCPA
Motions to Dismiss]. We have now to come in here and argue every element of every
claim against every defendant at this initial stage.” Sutherland further argued:
[O]ur good cause is, this is a fraud by nondisclosure case. They have the vast majority of the information in their possession because it was things that at least we argue w[ere] withheld from us.
This is a $5 million real estate transaction that left my client holding the bag on $8 million of rent over a 25-year period. So, there is a lot of money. There are a lot of complex issues. That[ is] why discovery is a little more lengthy than you may see in some of these other cases.
Based on the quoted arguments of counsel and others presented in briefing in
support of the requested discovery and in the two hearings, we hold that the trial court
acted well within its discretion in determining that Sutherland demonstrated “good
11 cause” entitling it to discovery relevant to the TCPA Motions to Dismiss. Thus, we
overrule Defendants’ first issue.
IV. The Discovery Order is not “Specified” and “Limited” and the Trial Court Abused Its Discretion.
Defendants next argue that the trial court abused its discretion in issuing the
Discovery Order because the permitted discovery is not “specified” and “limited” and
relevant to the motions to dismiss. We agree.
Under Section 27.006(b) of the TCPA, “discovery is relevant to the motion to
dismiss if it seeks information related to the allegations asserted in the motion.” SPEX
Group US, 2018 WL 1312407, at *4. Like our sister courts of appeals, we recognize that
“[s]ome merits-based discovery may also be relevant . . . to the extent it seeks
information to assist the non-movant to meet its burden to present a prima facie case
for each element of the non-movant’s claims to defeat the motion to dismiss.” Id.
(citing Serafine v. Blunt, 466 S.W.3d 352, 357–58 (Tex. App.—Austin 2015, no pet.)).3
3 Recently, this court observed that the TCPA’s mandatory stay of discovery once a motion to dismiss has been filed
becomes problematic in circumstances where a movant’s entitlement to bring a motion to dismiss under section 27.002 is dubious, i.e., when the plaintiff’s legal action is arguably not based on, related to, or in response to movant’s right of free speech, right to petition, or right of association. When a movant is not entitled to file a TCPA motion to dismiss but nevertheless files one, the respondent has no statutory mechanism to challenge the filing at the outset. Instead, under the statutory scheme, the respondent must wait until specified and limited discovery, if any, is
12 However, any merits-based discovery that is necessarily implicated by discovery relevant
to the motion to dismiss “must still be ‘specified and limited’ because a prima facie
standard generally ‘requires only the minimum quantum of evidence necessary to
support a rational inference that the allegation of fact is true.’” Id. (quoting In re E.I.
DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig. proceeding)).
Presumably, the non-moving party, even after showing “good cause” supporting its
need for discovery relevant to the motion to dismiss, would “not need multiple or
lengthy depositions or voluminous written discovery in order to meet the low
threshold to present a prima facie case.” Id. (emphasis added); see also Newspaper
Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 80 (Tex. App.—Houston
[1st Dist.] 2013, pet. denied) (op. on reh’g) (applying standard in TCPA case and
completed and challenge the motion at the time the hearing on the motion occurs.
The problem this creates is exacerbated in complex cases involving numerous legal actions where the movant uses a shotgun approach, taking aim at all of the legal actions, not just the actions that are actually based on free speech, petition, or association rights. In such cases, prior to receiving a threshold determination of whether the movant was entitled to bring the motion to dismiss as to certain claims in the first place, the plaintiff must nevertheless be armed with “clear and specific” evidence of each essential element of every single claim challenged. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). Thus, under these circumstances, discovery must be sufficiently broad to cover all essential elements of all of the challenged claims, even if it could be later determined that some of the claims did not fall within the TCPA.
IntelliCentrics, 2018 WL 5289379, at *3 (emphasis added).
13 explaining that Legislature’s use of “prima facie case” implies imposition of minimal
factual burden).4
Although the TCPA does not specifically define the scope of “specified and
limited discovery relevant to the motion to dismiss,” Texas courts, including this court,
have allowed non-movants to conduct abbreviated discovery, such as a short deposition
of the TCPA movant or very truncated document production. See, e.g., IntelliCentrics,
2018 WL 5289379, at *5 (allowing the non-movant to serve eleven document requests);
In re Bandin, 556 S.W.3d 891, 895 (Tex. App.—Houston [14th Dist.] 2018, orig.
proceeding) (allowing two, two-hour depositions of movants); Lane v. Phares,
544 S.W.3d 881, 889 n.1 (Tex. App.—Fort Worth 2018, no pet.) (noting that trial court
allowed three-hour deposition of TCPA movant); Warner Bros. Entm’t, Inc. v. Jones,
538 S.W.3d 781, 789 (Tex. App.—Austin 2017, pet. filed) (allowing “limited discovery,
including document production” and the deposition of one of the TCPA movants).
Here, Sutherland successfully articulated that “good cause” exists, entitling it to
discovery in order to meet the prima-facie burden imposed by the TCPA. However,
on its face, the discovery allowed by the Discovery Order is extremely broad and not
4 Indeed, the non-moving party would presumably possess at least some evidence supporting its own alleged causes of action that are subject to a TCPA motion to dismiss. If not, one could argue that the attorney or party engaged in sanctionable conduct by alleging groundless claims. See Tex. R. Civ. P. 13 (“The signatures of attorneys or parties constitute a certificate by them that they have read the pleading, motion, or other paper; that to the best of their knowledge, information, and belief formed after reasonable inquiry the instrument is not groundless and brought in bad faith or groundless and brought for the purpose of harassment.”).
14 limited and specific to the TCPA Motions to Dismiss. The Discovery Order allows
Sutherland to conduct at least six corporate representative depositions for four hours
each to address forty-three comprehensive deposition topics and to serve a total of
135 written discovery requests on the Defendants. Further, even the most cursory
review of Sutherland’s discovery reveals that Sutherland has made little effort to tailor
its requests to the specific issues raised in the TCPA Motions to Dismiss. For example,
Sutherland seeks the production of tax returns for all of Defendants from 2010 to the
present. Other examples of Sutherland’s overly broad document requests include
requests for “any agreements between the [P]arties and any supplements, additions,
deletions, or amendments thereto” and documents “evidencing any reports or other
analysis of the” real estate at issue in the lawsuit “from 2007 to the present.” Also, the
Discovery Order allows Sutherland to serve indiscriminate interrogatories requesting
from Defendants a “list[ing] of all properties you have served as a real estate agent or
broker and or have marketed, advertised or sold for Defendants (and their related and
affiliated entities) from 2007 to the present” and information regarding “commissions
for all properties you have marketed, advertised, or sold for” Defendants. These written
discovery requests are but a sampling of the scattershot, case-wide discovery requests
allowed by the Discovery Order that are not specifically tied to the allegations at issue
in the TCPA Motions to Dismiss.
The corporate representative depositions sought by Sutherland and allowed by
the Discovery Order are even more extensive. The requests as to the corporate
15 representative depositions did not reference specific topics in the Motions to Dismiss,
rather the forty-three categories of information sought from each of the six Defendants
concern such all-encompassing topics as:
• any Defendants’ involvement with the real estate at issue in the lawsuit; • any “[i]nformation or documentation exchanged by and between . . . Defendants and their real estate agents and/or brokers pertaining to the” real estate at issue; • the “financial struggles of . . . Defendants”; • “[a]ny information, including material information, that was not disclosed to [Sutherland] before, during, or after the purchase of the” real estate at issue in the lawsuit; • and “[a]ny other matters that relate or involve the subject matter of this litigation that are addressed in the [TCPA] Motion[s] to Dismiss.” It would be an exercise in pure sophistry for this court to hold such requests were
“specified” and “limited” to the TCPA Motions to Dismiss.
We hold that the Discovery Order is not properly limited to discovery of
information necessary to meet the minimum burden of establishing a prima facie case
for each element of Sutherland’s causes of action and is not limited to discovery relevant
to the TCPA Motions to Dismiss. As a result, the Discovery Order violates Section
27.006(b) of the TCPA and was a clear abuse of discretion. Thus, we sustain
Defendants’ second issue.
V. Defendants have no Adequate Remedy on Appeal.
In their third issue, Defendants contend that they are entitled to mandamus relief
because they have no adequate remedy on appeal. We agree.
16 While Sutherland may have established “good cause” for some discovery
relevant to the TCPA Motions to Dismiss, the mandate of the TCPA could not be any
clearer and cannot be ignored—any permitted discovery must be “specified and limited
discovery relevant to the motion.” Tex. Civ. Prac. & Rem. Code Ann. § 27.006(b); see
Beving, 563 S.W.3d at 406 (courts must take the TCPA’s enacted language as the “surest
guide to what lawmakers intended”); see also Conn. Nat’l Bank v. Germain, 503 U.S. 249,
253–54, 112 S. Ct. 1146, 1149 (1992) (“We have stated time and again that courts must
presume that a legislature says in a statute what it means and means in a statute what it
says there.”).
The broad and sweeping discovery permitted by the Discovery Order is not
properly limited and specific to discovery relevant to the motions to dismiss and, as far
as this court can determine, far exceeds the scope of any discovery allowed by any other
trial or appellate court under the TCPA. See, e.g., IntelliCentrics, Inc., 2018 WL 5289379,
at *5 (allowing the non-movant to serve eleven document requests); Lane, 544 S.W.3d
at 889 n.1 (noting that trial court allowed one three-hour deposition of TCPA movant).
We conclude that Defendants have no adequate remedy on appeal. See SPEX Group
US, 2018 WL 1312407, at *5 (relator was entitled to mandamus relief because there was
no adequate remedy on appeal from overly broad TCPA discovery order); see also In re
D.C., 05-13-00944-CV, 2013 WL 4041507, at *1 (Tex. App.—Dallas Aug. 9, 2013, orig.
proceeding) (mem. op.) (relator entitled to mandamus relief after the trial court granted
17 an emergency motion for expedited discovery prior to ruling on her TCPA motion to
dismiss without a showing of “good cause”).
Thus, we sustain Defendants’ third issue.
CONCLUSION
On this record, we conclude the trial court abused its discretion by issuing the
Discovery Order and by granting the excessive discovery requested by Sutherland. We
also conclude that Defendants have no adequate remedy on appeal. We conditionally
grant the writ in part and direct the trial court to vacate the Discovery Order as soon as
possible and, after a hearing, to issue a new order limiting discovery as required by the
TCPA. We deny all other relief requested by Defendants. We are confident the trial
court will comply with this opinion, and we will not issue a writ unless the trial court
refuses to timely comply. 5
5 With this opinion as their guide, we are confident, with the help of the trial court, that the attorneys will lay aside their respective shotguns and communicate in a good-faith attempt to agree upon the “specified and limited” discovery relevant to the TCPA Motions to Dismiss. Cf. Benjamin Franklin, Webster’s Book of Quotations 232 (3d ed. 1992) (“There was never a good war, or a bad peace.”). The parties are encouraged to remember the admonition of President Lyndon Johnson, “Come now, let us reason together.” John Bartlett, Familiar Quotations 872 (15th ed. 1980); see also Isaiah 1:18- 20 (NIV). By doing so, we are confident that this court will not again be summoned to the battlefield to intervene in this matter a third time. Indeed, the Texas Lawyer’s Creed, among other things, mandates that members of the Texas bar: (1) “will refrain from excessive and abusive discovery”; (2) “will comply with all reasonable discovery requests”; (3) “will not seek Court intervention to obtain discovery which is clearly improper and not discoverable”; (4) “will not arbitrarily schedule a deposition, Court appearance, or hearing until a good faith effort has been made to schedule it by agreement”; and (5) “will attempt to resolve by agreement . . . objections to matters
18 /s/ Mark T. Pittman Mark T. Pittman Justice
Delivered: April 22, 2019
contained in . . . discovery requests and responses.” Texas Lawyer’s Creed—A Mandate for Professionalism, reprinted in Texas Rules of Court 735–37 (West 2018), available at https://www.texasbar.com/AM/Template.cfm?Section=Ethics_Resources&Templat e=/CM/ContentDisplay.cfm&ContentID=30309 (last viewed Apr. 18, 2019); see also Dondi Props. Corp. v. Commerce Sav. & Loan Ass’n, 121 F.R.D. 284, 286–87 (N.D. Tex. 1988) (en banc) (requiring attorneys to hold meaningful discussions in an attempt to resolve discovery disputes without court intervention).