      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-10-00389-CV



                                           In re Campbell


                       ORIGINAL PROCEEDING FROM TRAVIS COUNTY



                              MEMORANDUM OPINION


                  In this mandamus proceeding, relators (plaintiffs below) Alvie and Julie Campbell

ask this Court to vacate the trial court’s order granting real party in interest Cavco Industries, Inc.’s

Motion for Protective Order and denying the Campbells’ Motion to Compel Discovery from

Defendant Cavco. We will conditionally grant the writ as to the order granting Cavco’s motion

for protection.

                  The Campbells filed suit against Cavco and several other defendants for deceptive

trade practices and breach of warranty, among other causes of action, in connection with their

purchase of a manufactured home. This original proceeding concerns a discovery dispute over the

Campbells’ deposition of Cavco’s designated corporate representative, Norman Ball. Soon after the

deposition began, counsel for the Campbells suspended proceedings, alleging that Cavco’s attorney

had violated the rules of civil procedure governing notice of and conduct during oral depositions.

See Tex. R. Civ. P. 199.2, 199.5.         Thereafter, the Campbells filed a motion to compel a

second deposition of Cavco’s designated corporate representative at a specific time and place and

sought sanctions against Cavco. Cavco responded with a motion for protective order and sanctions
against the Campbells, alleging that the termination of Ball’s deposition had not been in good faith

and that Cavco should not be required to produce Ball or any other corporate representative for

further depositions. In the alternative, Cavco sought an order requiring the Campbells to pay all

costs associated with any further depositions.

               After a hearing, the trial court granted Cavco’s motion “in its entirety” and ordered

that “Plaintiffs [Alvie and Julie Campbell] are prohibited from taking the deposition of Cavco’s

Corporate Representative or any other representative or employee of Cavco.” The same order denied

the Campbells’ motion to compel and denied both parties’ motions for sanctions. The Campbells

now seek a writ of mandamus, arguing that the trial court’s order was an abuse of discretion because

Cavco failed to meet its burden of producing evidence that the requested discovery was unduly

burdensome or unnecessarily harassing. See Tex. R. Civ. P. 192.6(b), 192.4, cmt. 7. They further

argue that the trial court’s denial of their motion to compel was an abuse of discretion.

               A trial judge may exercise discretion in the granting of a protective order and in

controlling the nature and form of discovery. Brewer & Pritchard, P.C. v. Johnson, 167 S.W.3d

460, 466 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). “Although a trial court has broad

discretion to schedule and define the scope of discovery, it can abuse its discretion by acting

unreasonably.” In re Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex. 1999). The test for abuse

of discretion is whether the trial court acted without reference to any guiding rules and principles or

whether, under all the circumstances of the particular case, the trial court’s action was arbitrary or

unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).




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                Mandamus will lie to correct a discovery error if the discovery order constitutes a

clear abuse of discretion and the aggrieved party has no adequate remedy by ordinary appeal. Tilton

v. Marshall, 925 S.W.2d 672, 682 (Tex. 1996); see Garcia v. Peeples, 734 S.W.2d 343, 345 (Tex.

1987). To determine whether the trial court abused its discretion in denying discovery, we review

the entire record, mindful that “the ultimate purpose of discovery is to seek the truth, 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). Erroneous denial of discovery going to the heart of a party’s

case severely compromises a party’s ability to present a viable claim or defense at trial, rendering

the appellate remedy inadequate. Able v. Moye, 898 S.W.2d 766, 772 (Tex. 1995).

                A party seeking to avoid discovery must show particular, specific, and demonstrable

injury by facts sufficient to justify a protective order. Garcia, 734 S.W.2d at 345; Brewer

& Pritchard, P.C., 167 S.W.3d at 466. “If the discovery sought is within the scope of Rule 192 of

the Texas Rules of Civil Procedure, a trial court may not grant a protective order limiting

discovery unless the party seeking such protection has met this burden.” Brewer & Pritchard, P.C.,

167 S.W.3d at 466 (citing Masinga v. Whittington, 792 S.W.2d 940, 940-41 (Tex. 1990)). In other

words, a party resisting discovery cannot simply make bare and conclusory allegations that the

requested discovery is unduly burdensome or duplicative; the party must instead produce some

evidence supporting its request for a protective order. Garcia, 734 S.W.2d at 345.

                Here, Cavco did not produce any evidence at the hearing, nor did it attach any

evidence to its motion for protective order. Instead, Cavco’s attorney simply argued that, having

already produced its representative for a deposition that was suspended by the Campbells’ counsel,



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Cavco should not be forced to produce him a second time. Cavco’s attorney also represented to the

trial court that the Campbells’ attorney had behaved inappropriately during depositions of other

witnesses in the case and that this was not the first time that the attorney had unilaterally terminated

a deposition.

                Although the trial court might have reasonably assumed that Cavco would incur some

expense from having to send Ball, or any other corporate representative, to Texas from Arizona for

another deposition, nothing in the record demonstrates that this would have been unduly burdensome

for Cavco. See ISK Biotech Corp. v. Lindsay, 933 S.W.2d 565, 568-69 (Tex. App.—Houston

[1st Dist.] 1996, orig. proceeding) (“[M]erely showing that a discovery request is burdensome

is not enough; it is only undue burden that warrants nonproduction.”); see also In re Amaya,

34 S.W.3d 354, 358 (Tex. App.—Waco 2001, orig. proceeding) (“Many deponents consider any

deposition harassing and burdensome and perhaps annoying, but unless the purpose of the deposition

can be shown to be only for an improper purpose, or unless it is an undue burden, the trial court

cannot limit the deposition on these bases.”). It goes without saying, therefore, that the record also

fails to demonstrate that a less severe sanction, such as requiring that any future deposition of

Cavco’s corporate representative be taken in Arizona, would have been unduly burdensome to

Cavco. Furthermore, the reference by Cavco’s attorney to how the Campbells’ counsel had allegedly

acted during other depositions is not evidence on which the trial court could have properly based its

protective order. See In re Amaya, 34 S.W.3d at 358 (attorney’s argument at hearing is no substitute

for evidence to show time, expense, or burden necessary to justify protective order).




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                In view of the foregoing, we conclude that the trial court’s order prohibiting the

Campbells from taking the deposition of any representative or employee from Cavco—effectively

foreclosing all discovery as to that defendant—was unreasonably harsh under the circumstances.

Although a trial court has great latitude in limiting discovery requests by time, place, and subject

matter, see Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995), the present order is less a

limitation than it is a complete bar to discovery. In the absence of any evidence that the information

sought by the Campbells was unreasonably cumulative or duplicative or was available through more

convenient, less burdensome, or less expensive means, or that the burden or expense of the proposed

discovery outweighed its likely benefit, see Tex. R. Civ. P. 192.4, granting Cavco’s protective order

in its entirety unreasonably restricted the Campbells’ access to relevant information. See Walker

v. Packer, 827 S.W.2d 833, 843 (Tex. 1992) (“[A] denial of discovery going to the heart of a party’s

case may render the appellate remedy inadequate.”).

                Accordingly, we conditionally grant the Campbells’ petition for writ of mandamus

and direct the trial court to vacate the portion of its order granting Cavco’s motion for protection.1

The writ will issue only if the trial court fails to comply with this opinion. See Tex. R. App. P. 52.8.




       1
          We do not address whether the denial of the Campbells’ motion to compel Cavco to
designate and produce a corporate representative for deposition in Austin, Texas on June 4, 2010,
was an abuse of discretion, as that issue is now moot.

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                                           J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Filed: August 31, 2010




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