• Beth M. Johnson

Discovery Issues and Mandamus Review

Updated: Jan 31

The new discovery rules are on everyone’s minds as we begin 2021. For the most part, discovery rulings are “incidental” rulings not subject to mandamus relief, but if the ruling completely hamstrings your ability to present your case or seeks discovery not permitted by the Rules, a petition for writ of mandamus may be necessary to protect your client’s rights. The new rules impose a duty of disclosure without the need for a request; however, the duty can be exempted by agreement or court order. While the clear intent of the rules is to facilitate the exchange of information, there may be situations where an order protecting certain information from discovery is appropriate. If an order prevents discovery that is essential to your case or requires discovery that could unjustly injure your client, mandamus relief may be appropriate.


The appellate court will only grant a writ of mandamus when (1) a trial court clearly abuses its discretion and (2) the party seeking mandamus relief (the “relator”) has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).


Mandamus provides an appropriate remedy:


· when the court denies “discovery going to the heart of a party’s case.” Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992) (orig. proceeding);


· to correct an order compelling production beyond that which is allowed by the Rules of Civil Procedure. In re Nat’l Lloyds Ins. Co., 507 S.W.3d 219, 225 (Tex. 2016);


· when overbroad discovery is not narrowly tailored as to time, place or subject matter. Id.; but see In re Sting Soccer Group, LP, No. 05–17–00317–CV, 2017 WL 5897454 (Tex. App.—Dallas 2017, orig. proceeding) (mem. op.) (parties cannot object to requests for “all,” “each,” or “every” document pertaining to a relevant, narrow subject of the litigation or to documents “equally available” to each party).


Generally, a denial of a motion for continuance is not reviewable by mandamus. However, if the motion for continuance sought additional time to conduct discovery, mandamus may be appropriate. The appellate court will consider the length of time the case has been on file, the materiality and purpose of the discovery sought, and whether the party seeking the continuance has exercised due diligence to obtain the discovery sought. In re Sakyi, No. 05-20-00574-CV, 2020 WL 4879902, at *4 (Tex. App.—Dallas 2020, orig. proceeding) (mem. op.).


When seeking to quash a deposition, the movant must show that participation would cause “undue burden, unnecessary expense, harassment, or an invasion of protected rights.” In re Mustang Asset Recovery, Ltd., No. 05-19-01036-CV, 2019 WL 6649056, at *3 (Tex. App.—Dallas 2019, orig. proceeding) (mem. op.). Conclusory statements do not suffice. Id. Trial courts have discretion to control the nature and form of discovery, but that discretion is not unlimited. Id.


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