“The denied discovery was necessary to develop a defense that goes to the heart of ExxonMobil’s case—that the providers’ rates were unreasonable. Additionally, the effects of the trial court’s denial of discovery will evade review by any higher court because the discovery ExxonMobil cannot obtain is from third parties, the providers, and thus cannot be included in the appellate record. Under these circumstances, we conclude that ExxonMobil lacks an adequate remedy on appeal.” In re ExxonMobil Corp., No. 20-0849 (Nov. 19, 2021) (applying In re K & L Auto Crushers, LLC, 627 S.W.3d 239 (Tex. 2021) (orig. proceeding).
Category Archives: Discovery
Laches Didn’t Bar Mandamus
In addition to other points about “apex depositions,” the supreme court rejected an argument that an unreasonable delay barred mandamus relief:
“American reasonably explained the year-long period between the trial court’s order compelling Eberwein’s deposition and American’s mandamus filing in the court of appeals. The record establishes that American did not receive notice of the order until four months after its issuance. At that point, the parties were on notice that the order set preconditions to Eberwein’s deposition by requiring Arnette to serve a new deposition notice designating deposition topics. To date, neither has occurred, with no explanation on Arnette’s part. As the trial date loomed, first in December 2020 and now in December 2021, American prudently sought mandamus relief to avoid the necessity of rescheduling the trial. On this record, the delay is neither unexplained nor unreasonable.”
In re American Airlines, Inc., No. 20-0789 (Oct. 22, 2021) (per curiam) (reaching a different conclusion than the Fifth Court of Appeals did in 2020.
Discovery About Arbitration?
In In re Copart, the supreme court granted mandamus relief as to discovery connected with a motion to compel arbitration: “In sum, Ordaz’s motion and affidavit demonstrate no colorable basis or reason to believe that the requested discovery would be material in establishing the agreement’s existence and enforceability. Ordaz thus failed to provide the trial court with a reasonable basis to conclude that it lacks sufficient information to determine whether her claims against Copart are arbitrable.” No. 19-1078 (March 12, 2021).
New TRCP
The Texas Supreme Court recently entered an order amending (effective Jan. 1, 2021) several rules of civil procedure about discovery, including:
— Amendment of Tex. R. Civ. P. 47, 169, and 190 so that expedited discovery procedures will apply to any case with $250,000 or less in controversy (amended from $100,000). This also changes the Rule 47 pleading requirement.
— Rule 194 is amended to follow Fed. R. Civ. P. 26 and require initial disclosure of, among other matters,“all documents, electronically stored information, and tangible things that the responding party has in its possession, custody, or control, and may use to support its claims or defenses, unless the use would be solely for impeachment.”
Thanks to my LPHS colleague John Adams for his careful review of this order.
