                                       In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                              _________________
                               NO. 09-15-00111-CV
                              _________________


                  IN RE AIR LIQUIDE INDUSTRIAL U.S. LP

________________________________________________________________________

                                Original Proceeding
________________________________________________________________________

                           MEMORANDUM OPINION

      Air Liquide Industrial U.S. LP, (“Relator” or “ALIUS”), filed a petition for

writ of mandamus seeking relief from orders signed by the presiding judge of the

County Court at Law Number One of Jefferson County, Texas. Relator presents

two issues in this original proceeding: (1) whether the trial court lacks jurisdiction

to hear the claims of the real party in interest, Gulf Coast Fabricators, Inc. (“Gulf

Coast”) because a district court in Harris County has assumed dominant

jurisdiction over the dispute; and (2) whether the trial court abused its discretion in

compelling responses to impermissibly overbroad requests for discovery.



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                            PLEA TO THE JURISDICTION

      According to the record currently before us, there are three pending lawsuits

that relate to a dispute between ALIUS and Gulf Coast regarding a Bulk Product

Agreement wherein ALIUS would supply Gulf Coast with argon gas: (1) a

declaratory judgment action filed by Gulf Coast on September 4, 2014, in the

County Court at Law Number One of Jefferson County; (2) a breach of contract

action filed by ALIUS on October 10, 2014, in the 157th District Court of Harris

County; and (3) a breach of contract action against an ALIUS affiliate Air Liquide

Large Industries U.S. LP (“ALLI”), filed by Gulf Coast on January 23, 2015, in the

172nd District Court of Jefferson County. Gulf Coast contends the County Court at

Law Number One retains dominant jurisdiction because it is the court with the

first-filed case. ALIUS contends the County Court at Law Number One lacks

jurisdiction because the 157th District Court took dominant jurisdiction when it

denied Gulf Coast’s plea in abatement.

      As a general rule, “when [a] suit would be proper in more than one county,

the court in which [the] suit is first filed acquires dominant jurisdiction to the

exclusion of other courts.” Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248

(Tex. 1988). Exceptions to the general rule apply where: (1) a party’s conduct

estops that party from asserting prior active jurisdiction; (2) a party is not before

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the court of the first-filed suit and cannot be joined; or (3) the plaintiff lacks intent

to prosecute the first lawsuit. Id. ALIUS argues the Harris County district court

asserted dominant jurisdiction over the dispute and that such jurisdiction remains

in the Harris County action unless and until that court’s ruling on the plea in

abatement is set aside. See generally Clawson v. Millard, 934 S.W.2d 899, 901

(Tex. App.—Houston [1st Dist.] 1996, orig. proceeding) (the second court may

assume dominant jurisdiction if, upon hearing a plea in abatement, it determines

that any of the Wyatt exceptions apply).

       “The proper method for contesting a court’s lack of dominant jurisdiction is

the filing of a plea in abatement, not a plea to the jurisdiction[.]” In re Puig, 351

S.W.3d 301, 303 (Tex. 2011) (orig. proceeding). A plea in abatement was filed—

and denied—in the Harris County case, but ALIUS has not shown this Court that it

asked the judge of the County Court at Law Number One to abate the Jefferson

County case until a court with mandamus jurisdiction over the Harris County judge

or appellate jurisdiction over the Harris County case determines whether the 157th

District Court abused its discretion in ruling that it had dominant jurisdiction over

the dispute. See id.at 306 (mandamus relief is appropriate when a court issues an

order which actively interferes with the exercise of jurisdiction by a court




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possessing dominant jurisdiction). 1 We conclude that the trial court did not commit

a clear abuse of discretion in denying Relator’s plea to the jurisdiction. Id.

                     COMPELLING OVERLY-BROAD DISCOVERY

      Next, we address whether the trial court erred in compelling responses to

overbroad discovery. The dispute between the parties relates to a supply

agreement. In August 2014, ALIUS sent Gulf Coast notices that four of its sources

of argon had temporarily ceased production and declared a “Force Majeure Period”

during which ALIUS estimated it could provide seventy percent of Gulf Coast’s

normal monthly product consumption. Gulf Coast’s petition for declaratory

judgment seeks a judicial determination that the contract’s “Excuse of

Performance” provision does not apply, that Gulf Coast has fully complied with its

obligations under the agreement, that Gulf Coast has not breached the agreement,

and that Gulf Coast and ALIUS have no more continuing obligations under the

contract. In response to Gulf Coast’s motion to compel, ALIUS argued to the trial



      1
         In the proceedings before the 157th District Court, ALIUS argued the
County Court at Law Number One of Jefferson County did not acquire jurisdiction
over the case because the Bulk Services Agreement was a multi-million dollar
contract and, consequently, the amount in controversy in Gulf Coast’s declaratory
judgment action and ALIUS’s breach of contract claim exceeded the jurisdictional
limit of the county court at law. We express no opinion concerning whether the
Harris County court abused its discretion by denying Gulf Coast’s plea in
abatement.
                                           4
court that Gulf Coast’s discovery requests are not reasonably calculated to lead to

discoverable evidence and are overly broad.

      Requests to produce must specify the items to be produced with reasonable

particularity. Tex. R. Civ. P. 196.1(b). “The trial court abuses its discretion by

ordering discovery that exceeds that permitted by the rules of procedure.” In re

CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding). “A central

consideration in determining overbreadth is whether the request could have been

more narrowly tailored to avoid including tenuous information and still obtain the

necessary, pertinent information.” Id. at 153. “Overbroad requests for irrelevant

information are improper whether they are burdensome or not[.]” In re Allstate

Cnty. Mut. Ins. Co., 227 S.W.3d 667, 670 (Tex. 2007) (orig. proceeding). “It is the

discovery proponent’s burden to demonstrate that the requested documents fall

within the scope-of-discovery of Rule 192.3.” In re TIG Ins. Co., 172 S.W.3d 160,

167 (Tex. App.—Beaumont 2005, orig. proceeding); see also Tex. R. Civ. P.

192.3. The proponent of discovery covering large periods of time must make a

threshold evidentiary showing to demonstrate how the discovery will result in the

production of relevant evidence. In re Mallinckrodt, Inc., 262 S.W.3d 469, 473

(Tex. App.—Beaumont 2008, orig. proceeding).




                                        5
      Gulf Coast concedes that Requests for Production Numbers 4 and 17 are

overly broad. Request for Production Number 4, which ALIUS states asks for

documents about its purchases of argon, requires production of “[a]ll

correspondence, communications, emails to and from any person affiliated with

any entity listed in your response to Interrogatory #1, from July 2006 to September

2014.” Request for Production 17 asks for “[a]ll documents relating to your claim

for attorneys fees, including but not limited to engagement contract with Baker

Botts, hourly rates, monthly billings, etc. To the extent that this may contain

references that you contend reveal attorney-client or attorney-work product

privileged information, same may be redacted.” The trial court abused its

discretion by compelling responses to requests for production that the real party in

interest concedes are overbroad. See CSX Corp., 124 S.W.3d at 152.

      In addition to the requests that Gulf Coast concedes are overly broad,

ALIUS challenges eleven additional requests for production of documents.

                                  Argon Suppliers

      In its discovery requests, Gulf Coast requested documents “pertaining to

ALIUS’s Argon Suppliers” over a period of time in excess of eight years,

beginning three months before the effective date of the Bulk Product Agreement.

The requests call for production of the following:

                                         6
      REQUEST FOR PRODUCTION NO. 2: Any and all documents
      pertaining to ALIUS’s Argon Suppliers from July 2006 to September
      2014, including amounts received and price paid, per month from July
      2006 to September 2014.

      REQUEST FOR PRODUCTION NO. 3: Any and all documents
      pertaining to ALIUS’ Argon Suppliers from July 2006 to September
      2014, buying Argon from you for supplying Argon to you.

      REQUEST FOR PRODUCTION NO. 5: All documents reflecting any
      efforts made by you to obtain Argon from any source other than those
      listed in your response to Interrogatory # 1 (or any source listed in
      Interrogatory #2 who were not, at the time of said efforts, supplying
      Argon to you), from July 2006 to September 2014.

      By granting Gulf Coast’s motion to compel, the trial court allowed

unfettered discovery of all of ALIUS’s argon transactions and every record of

every activity related to obtaining argon where no transaction occurred. The

requests ask for “any” and “all” documents “pertaining to” suppliers of argon,

potential suppliers of argon, and buyers of argon reaching back eight years before

the supply disruption that Gulf Coast alleges allowed it to terminate the contract.

Gulf Coast suggests that the evidence will show that during the time period of the

contract ALIUS shifted from having reserve capacity to one with little margin for

error, and argues the relevant inquiry is not whether ALIUS acted reasonably when

it notified Gulf Coast of the supply disruption, but whether it engaged in

irresponsible risk-taking. But, the requests for “any and all documents pertaining

to” argon suppliers are insufficiently specific to put ALIUS on notice of the
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documents it must produce. See TIG, 172 S.W.3d at 164. Furthermore, ALIUS’s

previous reserve capacity would not be relevant to its capacity in August 2014,

when the shortage occurred. “This is precisely the sort of fishing expedition that

harvests vast amounts of tenuous information along with the pertinent information”

about the supply disruption, and as such the request is facially overbroad. In re

GMAC Direct Ins. Co., No. 09-10-00493-CV, 2010 WL 5550672, at *1 (Tex.

App.—Beaumont Dec. 30, 2010, orig. proceeding) (mem. op.). The trial court

abused its discretion in compelling discovery responses to requests that are facially

overbroad both in time and in scope. See id.

                             Possible Sources of Argon

      The trial court compelled ALIUS to respond to a discovery request for all

documents reflecting any solicitations, advertisements, trade shows or other

possible source of argon:

      REQUEST FOR PRODUCTION NO. 6: All documents reflecting any
      solicitations, advertisements, trade shows, or other possible sources
      of obtaining Argon that were communicated to you or made available
      to you from July 2006 to September 2014.

      ALIUS complains that this request strays far outside the parties actions

related to the August 2014 supply disruption. Gulf Coast suggests the evidence

could show ALIUS passed on opportunities to increase capacity, but the request

impermissibly casts a net over a vast array of information without regard to
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whether it will aid in the resolution of the disputed issue. See GMAC, 2010 WL

5550672, at *1. A request for “all” documents “reflecting” possible sources of

obtaining argon is insufficiently specific to put ALIUS on notice of the documents

it must produce. See TIG, 172 S.W.3d at 164. Furthermore, the availability of an

advertisement for argon in July 2006 has no apparent connection to whether

ALIUS could control its supply of argon in September 2014. A “fishing

expedition” of this sort is impermissible. See Texaco, Inc. v. Sanderson, 898

S.W.2d 813, 815 (Tex. 1995) (orig. proceeding). Because the request is overbroad

in time and in scope, the trial court abused its discretion in compelling ALIUS to

respond to the request. See id.

                         ALIUS’S Customers and Prospects

      The trial court compelled ALIUS to provide information about its other

customers and potential customers, including:

      REQUEST FOR PRODUCTION NO. 7: Please produce any and all
      documents pertaining to ALIUS’ Argon delivery customers from July
      2006 to September 2014, including amounts delivered and price paid,
      per month, from July 2006 to September 2014.

      REQUEST FOR PRODUCTION NO. 8: Please produce true and
      correct copies of all contracts referenced in your answer to Request
      for Production #7.

      REQUEST FOR PRODUCTION NO. 9: All documents reflecting any
      efforts made by you to sell Argon to any customer or potential
      customer other than those listed in your response to Request for
                                        9
      Production #6 (or any customer listed in Request to Production #6
      who was not, at the time of said efforts, purchasing Argon from you).

      REQUEST FOR PRODUCTION NO. 10: All documents reflecting
      any inquiries to you from any potential customer from July 2006 to
      September 2014.

      Gulf Coast theorizes ALIUS increased sales “beyond the proper level” and

suggests the requests will obtain relevant information. ALIUS’s responses might

provide evidence that ALIUS’s argon orders exceeded its supply, but the requests

impermissibly request information well beyond the time when the supply

disruption occurred. See Mallinckrodt, 262 S.W.3d at 473. Requests to produce

every document that reflects ALIUS’s efforts to sell argon and every customer

inquiry impermissibly capture a broad scope of information with no connection to

the performance of the Bulk Product Agreement between ALIUS and Gulf Coast.

The trial court abused its discretion in compelling responses to the requests

because the requests are not narrowly tailored to avoid including tenuous

information and still obtain necessary, pertinent information. See CSX Corp., 124

S.W.3d at 153.

                               Allocation Decisions

      The trial court compelled ALIUS to respond to requests for production

concerning its allocation decisions for a period commencing eight years before this

dispute arose, including:
                                        10
      REQUEST FOR PRODUCTION NO. 13: All documents showing
      how you allocated Argon among your customers at any time from
      July 2006 to September 2014 where you did not have sufficient Argon
      to meet all customer requirements and engaged in any manner of
      allocation.

      REQUEST FOR PRODUCTION NO. 14: All documents referring to
      or containing any discussion about possible Argon allocations or the
      manner in which such allocation would be administered, from July
      2006 to September 2014.

      REQUEST FOR PRODUCTION NO. 16: All documents referring to
      or containing any discussion about your supply of Argon, including
      but not limited to whether it was sufficient or insufficient; the
      possibility of changes to the supply; contingency plans in the event of
      an adverse supply situation, or any similar discussion or subject, from
      July 2006 to September 2014.

      The declaratory judgment action concerns a supply disruption that occurred

in September 2014. The requests for production of documents concerning ALIUS’s

experience with previous supply disruptions over a preceding eight year period are

overly broad and are not narrowly tailored to avoid including tenuous information.

We conclude that the trial court abused its discretion in compelling responses to

the requests. See CSX Corp., 124 S.W.3d at 153; Mallinckrodt, 262 S.W.3d at 473.

                                   CONCLUSION

      We hold that the trial court did not abuse its discretion by denying ALIUS’s

plea to the jurisdiction, but the trial court did abuse its discretion by compelling

ALIUS to respond to Gulf Coast’s Requests for Production Numbers 2, 3, 4, 5, 6,

                                        11
7, 8, 9, 10, 13, 14, 16, and 17. “A discovery order that compels production beyond

the rules of procedure is an abuse of discretion for which mandamus is the proper

remedy.” In re Nat’l Lloyds Ins. Co., 449 S.W.3d 486, 488 (Tex. 2014) (orig.

proceeding). We are confident that the trial court will vacate its order compelling

discovery and the writ of mandamus shall issue only if the trial court fails to

comply with this opinion.

      PETITION CONDITIONALLY GRANTED IN PART.



                                                         PER CURIAM


Submitted on April 10, 2015
Opinion Delivered April 28, 2015

Before Kreger, Horton, and Johnson, JJ.




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