GRANT; and Opinion Filed January 31, 2014.




                                            Court of Appeals
                                                             S      In The


                                     Fifth District of Texas at Dallas
                                                         No. 05-13-01477-CV

                                            IN RE STAFF CARE, INC., Relator

                                  On Appeal from the 44th Judicial District Court
                                              Dallas County, Texas
                                        Trial Court Cause No. 11-03615

                                                              OPINION
                                    Before Justices Moseley, Lang-Miers, and Evans
                                            Opinion by Justice Lang-Miers
            Relator Staff Care, Inc. purchased a physician staffing business from one of the real

parties in interest. Real parties in interest, defendants in the trial court, started a competing

business called Consilium Staffing, Inc. Staff Care sued Consilium and four individuals for

breach of contract, theft of trade secrets, tortious interference, and other claims. Later, Staff Care

amended its petition to add eight new individual defendants. 1

            Staff Care filed this petition for writ of mandamus after the trial court signed an order

denying certain motions to compel discovery and denying Staff Care’s appeal of a ruling by an

associate judge. 2 Staff Care raises three issues. First, Staff Care complains of the trial court’s


    1
       We will refer to real parties in interest collectively as defendants. Where it is necessary to distinguish among them, we will refer to real
parties in interest as Consilium, the original defendants, and the additional defendants.

        2
        This order was entered after we issued our opinion and order of mandamus in In re Staff Care, Inc., No. 05-13-00987-CV, 2013 WL
4506571 (Tex. App.—Dallas Aug. 21, 2013) (orig. proceeding) (mem. op.). In that proceeding, Staff Care complained of the trial court’s failure
to rule on numerous pending motions. We conditionally granted the petition, directing the trial court to rule on the motions but expressing no
denial of its motions to compel production of documents that are “essential to establishing [Staff

Care’s] claims and damages.” Second, Staff Care complains of the trial court’s denial of its

motion to compel the depositions of the additional defendants and four “key employees” of

Consilium. Third, Staff Care complains of the trial court’s denial of its appeal of a ruling by an

associate judge “striking all of [Staff Care’s] damages evidence” by striking Staff Care’s

amended and supplemental disclosure responses. All of the challenged rulings were made in a

single order dated September 11, 2013. 3

                                                   STANDARDS FOR MANDAMUS

           Mandamus is an extraordinary remedy that is available only in limited circumstances.

CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996) (orig. proceeding) (citing Walker v. Packer,

827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)). Mandamus is appropriate “only to correct

a clear abuse of discretion or the violation of a duty imposed by law when there is no other

adequate remedy by law.” Id. In order to obtain mandamus relief, a relator must show both that

the trial court has clearly abused its discretion and that relator has no adequate appellate remedy.

In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004); Walker, 827 S.W.2d at 839–40.

Staff Care has met this burden in part. We therefore conditionally grant the writ of mandamus in

part and deny it in part.




opinion on the merits of any of Staff Care’s motions or the associate judge’s order. Id. at *1. The trial court held a hearing on all of the pending
matters on September 4, 2013, and signed a written order dated September 11, 2013. Relator challenges only some of the trial court’s eight
rulings in this order.
     3
       The trial court’s order of September 11, 2013, includes orders on eight motions filed by Staff Care. The mandamus record includes only
three of these motions, those addressed in paragraphs 3, 4, and 5 of the order: Plaintiff’s Third Motion to Compel Discovery (originally filed
September 26, 2012, and supplemented on May 23, 2013), Plaintiff’s Fourth Motion to Compel Discovery (filed June 21, 2013), and Plaintiff’s
Motion to Compel Depositions (filed May 23, 2013). The mandamus record does not include the motions referenced in paragraph (1)
(“Plaintiff’s Motion to Reconsider Its Further Motion for Continuance and Motion for Leave to Extend Deadlines and Enter Revised Scheduling
Order”), paragraph (2) (“Plaintiff’s Motion to Appoint Special Discovery Master”), paragraph (6) (“Plaintiff’s Second Motion to Compel
Depositions”), paragraph (7) (“Plaintiff’s Motion to Continue the Deposition of Defendant Crowdis”), and paragraph (8) (“Plaintiff’s Appeal of
Order Granting Defendants’ Motion to Compel Discovery and Motion to Strike Staff Care’s Disclosures,” although the record does include the
challenged order of the associate judge, dated July 11, 2013). Because Staff Care complains here of only four of the eight rulings, we express no
opinion regarding the remaining four.



                                                                       –2–
                        DEPOSITIONS OF PARTIES AND KEY WITNESSES

       In its second issue, Staff Care complains of the trial court’s denial of its motion to compel

the depositions of the eight additional defendants (real parties in interest Brent Burrows, Sheri

Ossorio, Tisha Schwartz, Jessica Ferguson, Jill Kennedy, Matt Kennedy, Melissa Palmer, and

Joseph Hawkins) and four “key employees” of Consilium who are not individual defendants

(Monique Degraauw, Lauren Etter, Christina Stephens, and Landon Webb). The eight named

defendants were added to the lawsuit in September, 2012.          The four key employees were

designated as persons with knowledge of relevant facts by Consilium and other defendants.

       Defendants argue that the requests to depose these individuals were untimely. Formal

deposition notices for these witnesses were sent on May 8, 2013. The depositions were noticed

to take place on May 29 (Ossorio), May 30, (Jill Kennedy and Matt Kennedy), May 31

(Degraauw and Etter), June 3 (Stephens), June 4 (Burrows), June 5 (Schwartz), June 6

(Ferguson), June 7 (Palmer), June 10 (Webb), and June 11 (Hawkins). Both the notices and the

noticed dates preceded the close of the discovery period on June 14 under the agreed scheduling

order. Defendants moved to quash these notices, and Staff Care filed its motion to compel on

May 23, 2013. This motion was not heard until September 4, 2013, after our original mandamus

order, and was denied in the trial court’s September 11, 2013 order.

       Defendants do not argue that the discovery sought was not relevant or not permitted

under the rules of civil procedure. Instead, they cite State v. Wood Oil Distributing, 751 S.W.2d

863, 865 (Tex. 1988), in support of their argument that Staff Care’s requests were untimely

because Staff Care failed to diligently pursue discovery. In that case, however, the issue was the

trial court’s denial of a continuance where the defendant had not taken any discovery in the two

years during which the case had been pending. See id. at 864. The defendant moved for a

continuance on the morning of trial to obtain additional time for depositions. Id. Noting that

                                               –3–
“the failure of a litigant to diligently utilize the rules of civil procedure for discovery purposes

will not authorize the granting of a continuance,” the court held that the trial court did not abuse

its discretion by denying the continuance. Id. at 865 (citing Fritsch v. J.M. English Truck Line,

Inc., 151 Tex. 168, 246 S.W.2d 856, 858–59 (1952)).

       Here, in contrast, Staff Care’s motion to compel attached correspondence between

counsel for the parties indicating that Staff Care initially requested the depositions of Degraauw,

Webb, Etter, Jill Kennedy, and Matt Kennedy by letter dated June 27, 2012, and of Burrows,

Ossorio, Schwartz, Ferguson, Palmer, Hawkins, and Stephens by letter dated November 12,

2012. Several e-mails between counsel were also attached to the motion to compel showing

additional efforts to schedule depositions of these witnesses. In addition, the record reflects that

Staff Care sought other discovery and took other depositions during the interim between this

correspondence and the service of formal notices in May 2013. Unlike the defendant in Wood

Oil Distributing, Staff Care did not wait until the morning of trial to make its requests or to

compel the discovery. See id. at 864. Its deposition notices and the scheduled depositions were

within the time for discovery under the agreed scheduling order. The motion to compel was also

timely, filed prior to the June 21 deadline for motions to compel.

       At the hearing on the motion to compel, defendants argued that they agreed to produce

these witnesses for deposition, but Staff Care refused unless defendants also agreed to extend

other deadlines and allow other additional discovery. Defendants were not required, however, to

agree to additional conditions or extensions of time. And under Rule 199.4, Texas Rules of Civil

Procedure, defendants could (and did) object to the time and place of the deposition by filing a

motion to quash Staff Care’s deposition notices.       But defendants cite no authority for the

proposition that Staff Care was not permitted to depose the witnesses at another time and place

when Staff Care made a timely request. See TEX. R. CIV. P. 199.1(a) (“A party may take the

                                                –4–
testimony of any person or entity by deposition on oral examination . . . .”). And they cite no

authority for the proposition that the trial court had discretion to deny Staff Care’s motion to

compel under these circumstances. Staff Care has been denied the opportunity to depose parties

and key witnesses to the lawsuit. Mandamus may issue where a party “is effectively denied the

ability to develop the merits of the case.” See In re Colonial Pipeline Co., 968 S.W.2d 938, 941–

42 (Tex. 1998). We sustain Staff Care’s second issue.

                                                    AMENDED DISCLOSURES

          In its third issue, Staff Care complains of the trial court’s denial of its appeal of a ruling

by an associate judge “striking all of [Staff Care’s] damages evidence.” The ruling in question

granted defendants’ motion to strike Staff Care’s amended and supplemental responses to

requests for disclosure under Rule 194, Texas Rules of Civil Procedure. Staff Care served the

amended disclosure responses on June 11, 2013, and the supplemental disclosure responses on

June 13, 2013, 4 immediately before the close of the discovery period on June 14. However, the

disclosure was made in response to a request to disclose “the amount and any method of

calculating economic damages” that had been pending for approximately two years.                                                         The

associate judge’s ruling struck the amended and supplemental disclosures in their entirety,

including the designation of approximately 200 persons with knowledge of relevant facts. In its

argument under its third issue, Staff Care complains of the striking of both its damages

disclosures and its designation of persons with knowledge of relevant facts.

          The standard for determining whether Staff Care’s amended and supplemental

disclosures were timely is whether they were made “reasonably promptly after the party

discovers the necessity for such a response.” TEX. R. CIV. P. 193.5(b) (regarding time of


     4
        The only amended and supplemental disclosures in the record are dated June 11 and 13, 2012; we assume this is a typographical error and
that the correct date is 2013.



                                                                    –5–
amended or supplemental discovery responses). Rule 194.3 required Staff Care to initially

respond to the request for disclosures within thirty days and Staff Care had no reason to delay

providing in its response economic damages because Staff Care could not be impeached if it later

amended its economic damages disclosures as the case progressed. See TEX. R. CIV. P. 194.6.

Staff Care argues that its amended and supplemental disclosures were timely because they were

made within the discovery period and more than thirty days prior to the date for trial. But there

is no presumption that an amended disclosure made more than thirty days prior to trial is timely.

See Snider v. Stanley, 44 S.W.3d 713, 715 (Tex. App.—Beaumont 2001, pet. denied) (although

rule includes presumption that supplement made less than thirty days before trial is untimely,

there is no opposite presumption that supplement made more than thirty days before trial is

timely). And here, it is undisputed that Staff Care made no disclosures at all regarding any of its

damages at any time before June 11, 2013. The record reflects that defendants’ request for that

information had been pending for approximately two years, and that defendants had questioned

Staff Care’s president on the subject in his deposition, but the information was never provided.

       The motion filed by defendants to strike Staff Care’s amended and supplemental

disclosures was based on Rules 193.5 and 193.6, Texas Rules of Civil Procedure, regarding

exclusion of evidence that is not timely disclosed. The burden was on Staff Care to prove good

cause for the untimely response, or lack of unfair surprise or unfair prejudice. TEX. R. CIV. P.

193.6(b). Staff Care cites Frazin v. Hanley, 130 S.W.3d 373 (Tex. App.—Dallas 2004, no pet.),

in which we held that it was error to strike the plaintiff’s expert witness designations, even

though the designations were not made by the applicable deadline. In Frazin, however, the

experts were designated in response to a new counterclaim not pleaded by the defendants until

fifty days after the expert designation deadline had passed. Id. at 378. The designation was

made within eight days after the counterclaim was filed, and thirty-one days before the trial date.

                                               –6–
Id. We concluded that the designation was “reasonably timely” under Rule 193.5(b), Texas

Rules of Civil Procedure. See id. at 377–78.

       Staff Care argues that as in Frazin, it was “forced to develop a new damages model” in

response to various actions by the trial court in late May. Staff Care contends that the trial

court’s denial of a continuance of the trial date, denial of Staff Care’s motion to reconsider a

partial summary judgment order, and resetting of a hearing on its third motion to compel for a

date after the close of discovery were triggering events forcing Staff Care to “abandon its

primary damage model.” We do not agree that these three events are similar to the appellee’s

pleading of a new counterclaim in Frazin. First, Staff Care does not raise the denial of its motion

for continuance as a ground for mandamus, and provides no argument or authority regarding any

abuse of discretion with respect to that order. Second, as discussed in more detail below, the

third motion to compel did not seek to compel any discovery of damages until Staff Care filed a

“supplement” to the motion on May 28, 2013, and neither the original nor the supplemental third

motion to compel cited to any pending discovery request for that information. Third, the trial

court’s partial summary judgment ruling was initially made on March 11, 2013, and it addressed

only the scope of the noncompetition agreements for the original defendants. The trial court’s

May 29, 2013, summary judgment order after reconsideration only changed the previous order

by deleting the reformation of the clauses. The trial court’s original ruling that the clauses were

unenforceable as written was unchanged, and Staff Care does not raise this ruling as a ground for

mandamus. Unlike the circumstances in Frazin, none of these events introduced a new cause of

action into the case to which Staff Care had no opportunity to respond. See Frazin, 130 S.W.3d

at 377–78. Frazin is distinguishable.

       Staff Care also argues that the striking of its amended disclosure responses constituted a

“death penalty” discovery sanction, and that therefore, the trial court was required to consider

                                               –7–
lesser sanctions before granting defendants’ motion to strike. We disagree. In discussing Rule

193.6, we have explained, “The rule is mandatory, and the penalty—exclusion of evidence—is

automatic, absent a showing of: (1) good cause or (2) lack of unfair surprise or (3) unfair

prejudice.” Oscar Luis Lopez v. La Madeleine of Texas. Inc., 200 S.W.3d 854, 860 (Tex. App.—

Dallas 2006, no pet.). We continued, “The sanction of automatic exclusion of undisclosed

evidence, subject to the exceptions set forth in the rule, is well established. The party offering

the undisclosed evidence has the burden to establish good cause or lack of surprise, which must

be supported by the record.” Id. (citations omitted). The trial court applied the proper standard

under Rule 193.6. See id.

          Defendants argued that Staff Care’s failure to disclose its damages theory until a few

days before the close of discovery prevented it from conducting any discovery on Staff Care’s

damages calculations. Part of this problem, however, was of the parties’ own making. 5 The

parties’ agreed scheduling order did not provide for progressive deadlines under which they

could review discovery responses, resolve disputes, and conduct any additional discovery needed

after any timely amendments were made. Defendants also argued, however, that regardless of

any discovery cutoff, Staff Care failed to disclose any information about its claimed damages—

even the names of persons with knowledge or expected methods of calculation—until one and

three days before the close of the discovery period which was long after Staff Care’s president

testified that Staff Care had “not done that level of due diligence” to determine any damages or

any economic loss to Staff Care. Defendants also pointed out that requests for that information

had been pending for more than two years, and that the persons Staff Care ultimately designated

as having knowledge of damages information were all employees of Staff Care or in Staff Care’s


     5
       In addition, the trial court had discretion to address this problem by granting a continuance “to allow opposing parties to conduct
discovery regarding any new information presented by that response.” TEX. R. CIV. P. 193.6(c).



                                                                  –8–
control, listing Staff Care’s counsel for their contact information. And although Staff Care did

not take the depositions of the additional defendants, it did depose the original defendants and a

corporate representative of Consilium, but failed to disclose any damages information relating to

the discovery it conducted from those parties. The associate judge and the trial court could have

concluded that in light of all of these facts, Staff Care’s amended and supplemental disclosures

were not made “reasonably promptly” after Staff Care discovered the necessity for an amended

response, and that Staff Care did not meet its burden of establishing good cause or lack of unfair

surprise or unfair prejudice. See TEX. RS. CIV. P. 193.5(b), 193.6(b). 6

           Staff Care also argues that its disclosure of some 230 persons with knowledge of relevant

facts in its amended and supplemental disclosures was timely and did not constitute unfair

surprise. Staff Care argues, and defendants do not dispute, that “only a handful” of names were

actually new. 7           Staff Care therefore carried its burden to establish lack of unfair surprise

regarding the identity of the previously-disclosed individuals, and the disclosures of the names of

those persons should not have been stricken. See TEX. R. CIV. P. 193.6. But to the extent the

substance of the disclosures added new information regarding Staff Care’s untimely damages

theory, we conclude that the trial court did not clearly abuse its discretion in denying Staff Care’s

appeal of the associate judge’s order granting defendants’ motion to strike.



     6
        We also reject Staff Care’s argument that the deadlines in the agreed scheduling order could not be enforced after the original July 22,
2013 trial date passed. Relying on H.B. Zachry Co. v. Gonzalez, 847 S.W.2d 246 (Tex. 1993) (per curiam), Staff Care contends that because our
August mandamus order “reset” the trial date, all of the discovery deadlines were “automatically nullified.” We rejected this argument in In re
Carpenter, No. 05-08-00083-CV, 2008 WL 384569 at *1–2 (Tex. App.—Dallas Feb. 14, 2008) (orig. proceeding) (mem. op.), concluding that
Zachry addressed the deadline for disclosing witnesses under former Rule 215(5) of the Texas Rules of Civil Procedure, not a pleading deadline
that was not “tied to the original . . . trial date.” We denied a petition for mandamus challenging an order striking an amended answer as untimely
under the trial court’s scheduling order. Id. Similarly, here, none of the deadlines at issue were tied to the agreed trial setting. In addition, the
parties made a specific agreement in the scheduling order that absent written agreement, “the schedules set forth herein will not be extended
except for good cause shown and upon written order of the court.” The trial court applied the deadlines to all parties; for example, the trial court
refused to allow defendants to set summary judgment motions for hearing that were not timely filed.
     7
       Because some 170 of the names are redacted from the record, we cannot make any determination whether those persons were previously
disclosed. For the remainder, the record supports Staff Care’s contention that “only a handful” of the names are new. The record also supports,
however, defendants’ contention that Staff Care did not disclose any knowledge of damages for any of the persons listed until the amended
disclosures on June 11, 2013.



                                                                       –9–
                                              MOTIONS TO COMPEL DOCUMENTS

            In its first issue, Staff Care contends that the trial court abused its discretion in denying

its motions to compel documents that are essential to establishing its claims and damages. The

two motions at issue are Staff Care’s third motion to compel documents, as supplemented, and

its fourth motion to compel documents.

            We first conclude that the trial court did not abuse its discretion in its rulings on the third

motion to compel, which was granted in part and denied in part in the trial court’s September 11,

2013 order. The third motion to compel was filed in September 2012, and a hearing was held on

the motion in November 2012. The trial court did not rule on the motion during or after the

hearing, and the motion was one of the subjects of the previous mandamus proceeding. See In re

Staff Care, Inc., 2013 WL 4506571 at *1. Staff Care now contends that because of the trial

court’s delay in ruling on the third motion to compel, “Staff Care could not meaningfully pursue

the discovery critical to establishing its damages.”

            The third motion to compel, however, did not seek to compel production of documents

relating to Staff Care’s damages until May 28, 2013, when Staff Care filed a “supplement” to the

motion. 8 The supplement added requests to compel the production of “documents establishing

the pay rates, bill rates, client contracts, client contacts, volume of business, [and] profits” for

    8
        The original third motion to compel requested seven categories of information:

              (1) All relevant documents and information regarding their Valley View and Las Colinas offices (including
              specifically why/when the Valley View Office was set up and/or closed down and what activities have taken place
              and/or which employees have worked at the Los Colinas Office since the inception of this lawsuit);
              (2) All Individual Defendants to provide “matched” lists based on verified Consilium records rather than from memory
              (such lists to be accompanied by the underlying records so that Plaintiff’s counsel may verify their accuracy);
              (3) A complete list of all past, current and prospective clients and providers that any Consilium employee has ever
              solicited, contacted, communicated with and/or done business with since the first Individual Defendant became an
              employee of Consilium;
              (4) Defendant Etter to provide his laptop on which he conducted Staff Care business for inspection;
              (5) An unredacted version of Consilium’s Limited Liability Company Agreement;
              (6) Complete responses and all related documents related to Requests for Production 6, 32-34, 37-39, 41-42, 47, 51-53,
              55, 57-66, and 71-72 in Plaintiff’s Third Request for Production; and
              (7) A definitive date thereafter for the deposition of Consilium’s corporate representative.

The numbered requests for production in paragraph 6 seek items such as documents reflecting the defendants’ e-mail addresses and cell phone
numbers; the agreements between defendants and their counsel; communications between Consilium and Staff Care; and Consilium documents
such as “documents that were created from Staff Care documents.”



                                                                      –10–
each doctor and facility named on a “matched list.” Neither the supplement nor the original third

motion to compel contains a reference to a corresponding discovery request propounded by Staff

Care seeking this information, and we have not found one in the record.

       The record reveals instead that the focus of the third motion to compel was furtherance of

the “matching” process, by which Staff Care sought to require production of a list of Consilium’s

clients which could then be “matched” against a list of Staff Care’s clients to determine any

overlap. The record also reveals that the matching process was vigorously contested at three

prior hearings on Staff Care’s first and second motions to compel. From the outset, the trial

court made clear that Staff Care could not obtain Consilium’s “entire client base.” But the

record is also clear that the trial court required defendants to undertake a narrower matching

process, and this process resulted in the identification of some ninety clients. At the hearing on

the third motion to compel, the trial court ordered that defendants’ corporate representative

appear for deposition and testify regarding information in Consilium’s client database. Although

the court deferred ruling on Staff Care’s request for sanctions and other issues raised in the third

motion to compel (such as the production of a laptop computer used by one of the defendants),

the court urged the parties to obtain a hearing on defendants’ motion for partial summary

judgment on the scope of the noncompetition agreements at issue after taking the discovery Staff

Care desired in order to respond. We conclude that the trial court did not clearly abuse its

discretion in its rulings on the third motion to compel.

       We also conclude that the trial court did not clearly abuse its discretion in denying Staff

Care’s fourth motion to compel. The fourth motion to compel was timely, filed on June 21,

2013, the last day for filing motions to compel under the scheduling order. It is the first motion

to compel responses from the additional defendants, because written discovery requests were not




                                               –11–
served on these parties until the latter part of the discovery period. The motion was heard for the

first time on September 4, 2013, and was denied in the September 11 order.

       The motion attaches copies of defendants’ responses to the discovery requests at issue;

these are dated June 14, 2013 (Consilium’s response to fourth request for production); June 13,

2013 (responses of Burrows, Ossorio, Schwartz, Ferguson, J. Kennedy, M. Kennedy, and Palmer

to first discovery requests); January 10, 2013 (Consilium’s second supplemental answers to

second set of interrogatories); October 29, 2012 (Etter, Crowdis, and Baade second supplemental

answers to second set of interrogatories); October 27, 2011 (Etter, Crowdis, Baade, and

Consilium responses to second request for production); August 22, 2011 (Consilium’s

supplemental answers to first set of interrogatories); August 19, 2011 (Moberly, Etter, Gentile,

and Baade supplemental answers to first set of interrogatories); May 27, 2011 (Moberly, Etter,

Gentile, Baade, and Consilium responses to first request for production). All but the June, 2013

responses were the subjects of prior motions to compel that were denied by the trial court.

       The fourth motion to compel summarizes the relief requested:

               Staff Care asks the Court to compel: (1) Consilium’s complete
               client and provider lists; (2) documents establishing every
               placement a former Staff Care employee has made for or on behalf
               of Consilium and the corresponding bill and pay rates for each
               placement; (3) documents establishing all commission such
               employees have made off of such placements; (4) all Blue Sky data
               supporting (2) and (3) above; and (5) supplemental responses to all
               pending discovery (where applicable). Without this critical
               information, Staff Care will be severely prejudiced at trial and will
               be unable to properly oppose Defendants’ No Evidence Motion for
               Summary Judgment.

       The trial court determined more than once that requests for “complete client and provider

lists,” and documents revealing “every placement” ever made by any of the defendants were

overbroad. In this fourth motion, however, Staff Care moved to compel responses to the same

requests without revision. We conclude that the trial court did not clearly abuse its discretion in

                                              –12–
declining to grant motions to compel responses to the same discovery requests it had considered

and rejected previously.

           As to the additional defendants, the record reflects that each answered numerous requests

for admission, interrogatories, and requests for production served on them before the end of the

discovery period. The responses indicate that some documents were to be produced, but the

record does not include them. The September 4, 2013, hearing transcript indicates that Staff

Care also requested that these defendants undertake a “matching” process with a list provided by

Staff Care, but the record does not include either the request or the list. On this record, and in

light of our ruling that Staff Care should be permitted to depose these parties, we cannot say that

the trial court clearly abused its discretion by denying the portion of the fourth motion to compel

as to these parties.

                                                               CONCLUSION

           Accordingly, we conditionally grant Staff Care’s petition for writ of mandamus in part.

A writ will issue only in the event the trial court fails to vacate the following portions of its

September 11, 2013 order: paragraph (5) 9 (denying motion to compel depositions); and the

portion of paragraph (8) denying Staff Care’s appeal of the associate judge’s order granting

defendants’ motion to strike from Staff Care’s supplemental and amended disclosures of June 11

and 13, 2013, the names of persons that were previously disclosed in discovery.




                                                                            /Elizabeth Lang-Miers/
                                                                            ELIZABETH LANG-MIERS
131477F.P05                                                                 JUSTICE


     9
        The eight motions ruled on in the trial court’s September 11, 2013 “Order on Various Motions” are numbered differently in a list on page
1 of the Order than on pages 2 to 7 of the Order containing the trial court’s substantive rulings. We use the numbering of the substantive rulings.



                                                                     –13–
