In Re Univar USA, Inc.

311 S.W.3d 183, 2010 Tex. App. LEXIS 2921, 2010 WL 1610760
CourtCourt of Appeals of Texas
DecidedApril 21, 2010
Docket09-10-00064-CV
StatusPublished

This text of 311 S.W.3d 183 (In Re Univar USA, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Univar USA, Inc., 311 S.W.3d 183, 2010 Tex. App. LEXIS 2921, 2010 WL 1610760 (Tex. Ct. App. 2010).

Opinion

*184 OPINION

STEVE McKEITHEN, Chief Justice.

Univar USA Inc. Wa McKesson Chemical seeks mandamus review of an order of the trial court, signed February 12, 2010, compelling relator to present a corporate representative for deposition. We conditionally grant partial relief and direct the trial court to vacate its prior order and enter an order quashing the notice of deposition.

The real parties in interest, Carol Thompson acting individually and as the representative of the Estate of John Thompson, and Greg Thompson, allege that John Thompson died as the result of acute myelogenous leukemia allegedly caused by occupational exposure to benzene. The trial court’s order concerns the deposition of a corporate representative of McKesson Chemical. In its first issue, Univar contends the trial court abused its discretion by compelling discovery without an adequate showing that Thompson was exposed to benzene sold by McKesson Chemical. In its second issue, Univar contends that the discovery compelled by the trial court is overbroad with respect to subject matter, place, and time.

Univar relies upon the precedent established by this Court’s opinion in In re Mallinckrodt, in which we stated the standard of review. See In re Mallinckrodt, Inc., 262 S.W.3d 469, 472 (Tex.App.-Beaumont 2008, orig. proceeding).

For discovery matters, mandamus relief is generally appropriate only if a trial court abuses its discretion and the party resisting the discovery has no adequate appellate remedy. CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex.1996) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992) (orig. proceeding). A trial court clearly abuses its discretion when an action is “so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Walker, 827 S.W.2d at 839.
Generally, the trial court has discretion to control the scope of discovery for the cases over which it presides. See Dillard Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex.1995) (per curiam). However, its discretion is not unlimited, as the trial court is obligated to make an effort to impose reasonable discovery limits. In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex.1998) (per curiam). For example, ordering discovery that exceeds “that permitted by the rules of procedure” constitutes an abuse of discretion. Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex.1995) (per curiam).
On multiple occasions the Texas Supreme Court has prohibited discovery that it has characterized as constituting a fishing expedition. K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex.1996) (per curiam); Dillard Dep’t Stores, Inc., 909 S.W.2d at 492; Texaco, 898 S.W.2d at 815. The Texas Supreme Court also requires that requests to produce be tailored to include only matters relevant to the case. In re Am. Optical Corp., 988 S.W.2d at 713. Moreover, the Texas Supreme Court has criticized discovery orders “requiring document production from an unreasonably long time period or from distant and unrelated locales” as impermissibly overbroad and held that such requests are subject to correction by mandamus. In re CSX Corp., 124 S.W.3d 149,152-53 (Tex.2003) (per curiam). Recently, the Texas Supreme Court reiterated: “[T]rial courts ‘must make an effort to impose reasonable discovery limits.’” In re Allstate County Mut. Ins. Co., 227 S.W.3d 667, 668 (Tex.2007) (per curiam) (quoting In re CSX Corp., 124 S.W.3d at 152).
*185 Before a court can order production based on discovery requests that cover multiple decades, the discovery proponent must make a threshold evidentiary showing to demonstrate the relevance of the requested documents. See In re Dana Carp., 188 S.W.3d 298, 301 (Tex.2004) (per curiam) (“[O]ur rules require that a threshold showing of applicability must be made before a party can be ordered to produce multiple decades of insurance polieies[.]”). In Dana Corporation, the discovery proponents made their threshold showing with respect to some of the requested discovery by affidavit. Id. The affidavits were insufficient, however, with respect to some of their other discovery requests. Id. at 301-02.
This court has likewise required that the proponent of discovery covering large periods of time make a threshold evidentiary showing to demonstrate how the discovery will result in the production of relevant evidence. In re TIG Ins. Co., 172 S.W.3d 160, 167 (Tex.App.Beaumont 2005, orig. proceeding). In that case, we stated: “It is the discovery proponent’s burden to demonstrate that the requested documents fall within the scope-of-discovery of Rule 192.3.” Id. [ (citing Tex.R. Civ. P. 192.3) ] We followed the reasoning of the Texas Supreme Court in determining whether information was discoverable, namely that courts must ascertain if the information is discoverable under Rule 192.3(a)’s general scope-of-discovery test. Id. (quoting In re Dana Corp., 138 S.W.3d at 301).

In re Mallinckrodt, 262 S.W.3d 469, 472-73 (Tex.App.-Beaumont 2008, orig. proceeding).

Thompson testified that he used benzene that came from black drums or green and white drums, but he did not identify the names of the manufacturers or suppliers of the products. Thompson worked at DuPont Sabine River Works from 1966 through 1968 and used benzene as a cleaning solvent. The benzene he used came from black drums. Thompson submitted testimony from Rayford Jimer-son that the benzene used at the Sabine River Works came from Van Waters & Rogers. Harold Wellen of Van Waters & Rogers testified that the drums used by that company to supply benzene in the 1960’s and early 1970’s were green and white. A drum filler for Van Waters & Rogers, Joseph Beverly, testified that his company put benzene in green and white drums.

Thompson worked at Texas U.S. Chemical Company from 1970 to 1971. While employed at Texas U.S. Chemical, Thompson used benzene in fifty-five gallon drums as a cleaning agent. Lee Fry testified that during his employment as a chemist at Texas U.S.

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Related

In Re CSX Corp.
124 S.W.3d 149 (Texas Supreme Court, 2003)
In Re Allstate County Mutual Insurance Co.
227 S.W.3d 667 (Texas Supreme Court, 2007)
K Mart Corp. v. Sanderson
937 S.W.2d 429 (Texas Supreme Court, 1997)
CSR LTD. v. Link
925 S.W.2d 591 (Texas Supreme Court, 1996)
In Re TIG Insurance Co.
172 S.W.3d 160 (Court of Appeals of Texas, 2005)
In Re Mallinckrodt, Inc.
262 S.W.3d 469 (Court of Appeals of Texas, 2008)
In Re American Optical Corp.
988 S.W.2d 711 (Texas Supreme Court, 1998)
Walker v. Packer
827 S.W.2d 833 (Texas Supreme Court, 1992)
Texaco, Inc. v. Sanderson
898 S.W.2d 813 (Texas Supreme Court, 1995)
Dillard Department Stores, Inc. v. Hall
909 S.W.2d 491 (Texas Supreme Court, 1995)

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Bluebook (online)
311 S.W.3d 183, 2010 Tex. App. LEXIS 2921, 2010 WL 1610760, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-univar-usa-inc-texapp-2010.