                             NUMBER 13-09-00438-CV

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG



                IN RE EXMARK MANUFACTURING. CO., INC.



                       On Petition for Writ of Mandamus.


                                    OPINION

    Before Chief Justice Valdez and Justices Yañez and Benavides
                   Opinion by Chief Justice Valdez

       Relator, Exmark Manufacturing Co., Inc., filed a petition for writ of mandamus and

motion for temporary relief in the above cause on July 28, 2009, challenging an order

compelling discovery in a product liability case. By order issued on July 29, 2009, this

Court granted the motion for temporary relief and requested a response to be filed by the

real parties in interest, Rodolfo Luis Castillo, Jr. and Yadira Ivette Arroyo. Such response

has been duly filed by the real parties in interest, and the Court has further received a

supplemental record and reply brief from relator.       We deny the petition for writ of
mandamus as stated herein.

                                          I. BACKGROUND

        Rodolfo Luis Castillo, Jr. was paralyzed as a result of a “rollover” incident involving

a zero-turn riding lawnmower, the Lazer Z HP, designed and manufactured by Exmark

Manufacturing Co., Inc. (“Exmark”). Castillo was severely injured when the lawnmower he

was riding rolled down an embankment while he was cutting grass in the course of his

employment with a landscaping company.

        Real parties in interest brought suit against Exmark and others on grounds that the

lawnmower was defectively designed, manufactured, and marketed without a rollover

protection system.1 According to real parties, the riding lawnmower “was not adequate for

its intended use according to the industry standards at the time it was placed in the stream

of commerce,” and “a safer alternative design was available,” but was not utilized.

        Real parties in interest propounded discovery to Exmark in February 2009. By

agreement, the parties delayed Exmark’s deadline for the formal production of documents

until after mediation, which was held on May 14, 2009. Exmark formally responded to the

requests for production on June 4, 2009. Real parties filed a motion to compel on June

9, 2009, and the trial court conducted a hearing two weeks later.

        At the hearing, the parties and trial court focused on a proposed order furnished by

the real parties in interest. The scope of this draft order was substantially narrower than

the original requests for production, and, for example, required discovery on only thirty-

seven of the eighty-seven requests for production. At the hearing, Exmark’s counsel stated

on the record that the proposed order “goes a long way towards resolving a lot of our



        1
          Real parties also brought suit against The Toro Com pany and Young Men’s Christian Association
of the Greater Houston Area.

                                                   2
issues.” He further informed the trial court that, “with this new order, this is something we

can work with. We just need a little time to get with our people . . . .” After conceding

these points on the record, Exmark offered no evidence regarding any objections or

privileges to the proposed discovery order, or any evidence suggesting an alternative

scope of discovery, but instead, filed objections to the real parties’ proposed order on July

6 and 10, 2009. On July 8, the trial court signed a discovery order submitted by Exmark;

however, on July 13, the trial court signed a different discovery order submitted by the real

parties in interest. On July 20, upon learning of the conflicting orders, the trial court

entered an order extending Exmark’s deadline for production by one day. On July 21,

2009, the trial court ultimately issued the order at issue herein, which had been submitted

by the real parties in interest. This original proceeding ensued.

       Through five issues, Exmark complains that: (1) it should not be compelled to

produce documents regarding products that were not used by the injured party and

incidents that have no discernible connection to the accident in question; (2) it should not

be compelled to produce documents over an unreasonably long time period, including a

time period that exceeds ten years prior to the accident in question and, in some cases,

pre-dates the date of manufacture for the exact product at issue; (3) the trial court awarded

the real parties more relief than was sought in their original discovery requests or in their

motion to compel; (4) the trial court improperly restricted the production of documents to

one of two manners of production set forth in Texas Rule of Civil Procedure 196.3(c),

especially because real parties never asked for such relief in their motion to compel; and

(5) the trial court abused its discretion in compelling the production of documents within ten

days instead of thirty days.

                                  II. STANDARD OF REVIEW

                                              3
       The scope of discovery is a matter devoted to the trial court’s discretion. In re CSX

Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding) (per curiam). However, a writ

may issue where the trial court’s order improperly restricts the scope of discovery as

defined by the Texas Rules of Civil Procedure. See Lindsey v. O'Neill, 689 S.W.2d 400,

401 (Tex. 1985) (orig. proceeding) (per curiam). Similarly, mandamus relief may be

available when the trial court compels production beyond the permissible bounds of

discovery. In re Weekley Homes, L.P., No. 08-0836, 2009 Tex. LEXIS 630, at **35-36, 52

Tex. Sup. Ct. J. 1231 (Tex. Aug. 28, 2009) (orig. proceeding); see In re Am. Optical Corp.,

988 S.W.2d 711, 714 (Tex. 1998) (orig. proceeding) (concluding that no adequate

appellate remedy existed where the trial court ordered overly broad discovery). “If an

appellate court cannot remedy a trial court’s discovery error, then an adequate appellate

remedy does not exist.” In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004) (orig.

proceeding); see Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992) (orig. proceeding)

(noting that a party will not have an adequate remedy by appeal when a trial court’s order

“imposes a burden on the producing party far out of proportion to any benefit that may

obtain to the requesting party”).

                              III. RELATOR ’S EVIDENTIARY BURDEN

       As an initial matter, we note that Exmark failed to produce any evidence supporting

its objections to the discovery requests at issue on grounds of relevance or overbreadth.

Exmark argues that it is “not required or necessary [to] produce evidence in support of . .

. objections” to discovery.

       The party objecting to discovery must present any evidence necessary to support

its objections. See TEX . R. CIV. P. 193.4(a), 199.6. Evidence is not always required to

support an objection or claim of privilege. In re Union Pacific Resources Co., 22 S.W.3d

                                              4
338, 341 (Tex. 1999) (orig. proceeding) (holding that evidence is not required to support

an “an assertion relating to discovery when evidence is unnecessary to decide the matter”).

For example, when a request is overly broad as a matter of law, the presentation of

evidence is unnecessary to decide the matter. See In re Am. Optical, 988 S.W.2d at 712;

In re CSX Corp., 124 S.W.3d at 153; In re Union Pac. Res. Co., 22 S.W.3d at 341.

       Accordingly, there are circumstances where a discovery order might be so

overbroad that an objection to the overbreadth is self-evident from the order itself when

considered in light of the issues raised in the pleadings. See, e.g., Loftin v. Martin, 776

S.W.2d 145, 148 (Tex.1989) (orig. proceeding). However, this is not always the case and

is not the case in the matter now before us. See, e.g., In re Alford Chevrolet-Geo, 997

S.W.2d 173, 181 (Tex. 1999) (“A party resisting discovery . . . cannot simply make

conclusory allegations that the requested discovery is unduly burdensome or unnecessarily

harassing. The party must produce some evidence supporting its request for a protective

order.”); see also Garcia v. Peeples, 734 S.W.2d 343, 345 (Tex.1987); Ind. Insul.

Glass/Southwest, Inc. v. Street, 722 S.W.2d 798, 802 (Tex. App.–Fort Worth 1987, writ

dism’d). When it is not self-evident that the discovery order is overly broad, the party

resisting the discovery bears the burden of offering evidence to prove its objections:

       [W]e conclude that the trial court did not abuse its discretion in ordering the
       tapes produced because CI Host did not meet its burden to support its
       objection under our rules of civil procedure governing discovery. To object
       to a discovery request, the responding party must make a timely objection in
       writing and “state specifically the legal or factual basis for the objection and
       the extent to which the party is refusing to comply with the request.” TEX . R.
       CIV. P. 193.2(a). A party is also required under the rules to produce what is
       discoverable when it asserts that only part of a request is protected. TEX . R.
       CIV. P. 193.2(b). Any party making an objection or asserting a privilege must
       present any evidence necessary to support the objection or privilege. TEX .
       R. CIV . P. 193.4(a) . . . . CI Host had the burden to present evidence
       supporting its objection, see TEX . R. CIV. P. 193.4(a), but did not present any
       evidence to the court . . . . Thus, in light of CI Host’s failure to produce

                                              5
        evidence to support its ECPA objection or to segregate and produce the
        information it has now admitted is not protected by the ECPA, we cannot
        conclude that the trial court abused its discretion in overruling that objection
        and ordering the tapes produced.

In re CI Host, Inc., 92 S.W.3d 514, 516-17 (Tex. 2002) (orig. proceeding). This burden has

been applied to objections that discovery requests are overly broad or unduly burdensome.

See, e.g., In re Amaya, 34 S.W.3d 354, 357 (Tex. App.–Waco 2001, orig. proceeding);

Ford Motor Co. v. Ross, 888 S.W.2d 879, 892 (Tex. App.–Tyler 1994, orig. proceeding);

Chamberlain v. Cherry, 818 S.W.2d 201, 205 (Tex. App.–Amarillo 1991, orig. proceeding);

Miller v. O’Neil, 775 S.W.2d 56, 59 (Tex. App.–Houston [1st Dist.] 1989, orig. proceeding);

Mole v. Millard, 762 S.W.2d 251, 253 (Tex. App.–Houston [1st Dist.] 1988, orig.

proceeding); Ind. Insul. Glass/Southwest, 722 S.W.2d at 802.

        In the instant case, as will be discussed in detail herein, the alleged overbreadth of

the trial court’s order is not self-evident and the order itself is not overly broad as a matter

of law when compared to the issues raised in the pleadings. Accordingly, Exmark had the

burden to produce any evidence necessary to support its objections.2

                          IV. SCOPE OF DISCOVERY REGARDING PRODUCTS

        Exmark argues that in “product liability cases, trial courts must limit the scope of

discovery to the model of the products at issue in the case.” Exmark specifically contends

that the trial court’s order is impermissibly broad because it “requires Exmark to produce

a broad range of documents that have no connection to the Lazer Z HP model zero-turn

riding lawnmower at issue.” Exmark complains that the order at issue requires the

        2
            T he sole evidence provided by Exm ark was the affidavit of Rodney L. Benson, its Engineering
Services Manager. The affidavit was attached to Exm ark’s response to the real parties’ m otion to com pel.
In relevant part, Benson stated that the lawn m ower at issue herein “has at least 800 com ponent parts,” and
“[s]ince August 28, 1998, Exm ark has m anufactured approxim ately 30 different m odels of riding lawnm owers
per year, for a total of approxim ately 330 different m odels of riding lawnm owers. Each different Exm ark m odel
of riding lawnm ower has its own drawings and diagram s.” The affidavit did not provide any further inform ation
about Exm ark’s lawnm owers or further address the issues of relevance or breadth of discovery.

                                                        6
production of documents regarding all of its 330 product models3 with a time limitation of

between eleven and thirteen years.

        As an initial matter, we note that Exmark devotes a considerable amount of energy

and the overwhelming majority of its argument in its petition for writ of mandamus to

complaints regarding the scope and breadth of the requests for production, rather than the

scope and breadth of the trial court’s order compelling discovery. See generally In re Am.

Optical, 988 S.W.2d at 712-13 (“The requesting party has the responsibility to narrowly

tailor its requests to produce.”). However, the court’s discovery order under review is much

narrower in scope than the requests for production, and Exmark’s counsel expressly

acknowledged as much to the trial court. In this regard, we note that the order at issue was

the result of the parties working “extensively” to refine the order from the requests for

production.

        The relevant query herein is whether the narrower scope of the discovery ordered

produced is overbroad and not whether the original requests for production were

overbroad, and Exmark has not met its burden with respect to establishing the alleged

overbreadth of the information ordered produced. Stated otherwise, our focus in this

original proceeding is whether the trial court abused its discretion in entering the order at

issue, and we confine our analysis accordingly.

        The rules of procedure provide that the scope of discovery includes any unprivileged

information that is relevant to the subject of the action, even if it would be inadmissible at

trial, as long as the information sought appears “reasonably calculated to lead to the



        3
           According to affidavit testim ony proffered by Exm ark: “Since August 28, 1998, Exm ark has
m anufactured approxim ately 30 different m odels of riding lawnm owers per year, for a total of approxim ately
330 different m odels of riding lawnm owers.” In other words, it appears that Exm ark considers each year’s
m odel to be a separate product.

                                                      7
discovery of admissible evidence.” TEX . R. CIV. P. 192.3(a); see also In re CSX Corp., 124

S.W.3d 149, 152 (Tex. 2003) (orig. proceeding). Information is relevant if it tends to make

the existence of a fact that is of consequence to the determination of the action more or

less probable than it would be without the information. TEX . R. EVID . 401. The phrases

“relevant to the subject matter” and “reasonably calculated to lead to admissible evidence”

are liberally construed to allow litigants to obtain the fullest knowledge of the facts and

issues prior to trial. Axelson v. McIlhany, 798 S.W.2d 550, 553 (Tex. 1990); see also TEX .

R. CIV. P. 1.

       “Generally, the scope of discovery is within the trial court’s discretion,” but “the trial

court must make an effort to impose reasonable discovery limits.” In re CSX Corp., 124

S.W.3d at 152. Thus, because discovery may not be used as a fishing expedition,

discovery requests must be reasonably tailored to include only matters relevant to the

case. In re CSX Corp., 124 S.W.3d at 152; In re Am. Optical Corp., 988 S.W.2d at 713.

A reasonably tailored discovery request is not overbroad merely because it may include

some information of doubtful relevance, and “parties must have some latitude in fashioning

proper discovery requests.” Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995).

       Exmark complains specifically about the trial court’s order pertaining to the following

requests for production:

       Request for Production 14 (“internal memoranda, correspondence or emails
       regarding the need for or the lack of a need for inclusion of a Rollover
       Protective Device on a [sic] the Riding Lawnmower”),

       Request for Production 15 (“internal memoranda, correspondence or emails
       regarding the need for or the lack of a need for inclusion of a Rollover
       Protective Device on a zero turn riding lawnmower”),

       Request for Production 17 (“design, drawings or diagrams regarding any
       Lazer Z HP riding lawnmower manufactured from 1998 to the present”),



                                               8
      Request for Production 19 (“prior depositions given by an Exmark employee
      and/or corporate representative addressing the need or lack of a need for a
      Rollover Protection Device on any riding lawnmower”),

      Request for Production 21 (“all answers to interrogatories in prior cases
      where Exmark was a Defendant and where it was alleged that a riding
      lawnmower should have had a Rollover Protection Device”),

      Request for Production 23 (“all affidavits signed by an agent or
      representative employee of Exmark in any way discussing the need or lack
      of a need for a Rollover Protective Device on a riding lawnmower”),

      Request for Production 42 (“guides, directions or warnings that were
      prepared by or for Exmark identifying the proper installation, repair, removal
      or replacement of a Rollover Protective Device on the Riding Lawnmower
      involved in the accident forming the basis of this case and any subsequently
      manufactured Lazer-Z zero-turn riding lawnmowers”),

      Request for Production 43 (“marketing material regarding the Lazer-Z HP
      and Rollover Protection Devices zero-turn riding lawnmowers from 1998 to
      the present”),

      Request for Production 45 (“tests, studies, research and development
      materials prepared by Exmark or for Exmark addressing the hazards of or
      for, need or feasibility of including a Rollover Protective Device on the Lazer-
      Z zero-turn riding lawnmowers for the period of 1995 to the present”),

      Request for Production 49 (“studies, published papers and statistics
      regarding the injuries and hazards to users of riding lawnmowers who were
      injured or killed as a result of the lack of a Rollover Protective Device . . .
      [including] the period of January 1, 1995 to January 1, 2004"),

      Request for Production 62 (“any written complaints of injuries to or death of
      users of Exmark manufactured riding lawnmowers where it was alleged that
      an injury occurred as a result of the lack of a Rollover Protective Device”),
      and

      Request for Production 63 (“copies of the complaints, petitions or similarly
      named pleadings in all prior lawsuits against Exmark where it was alleged
      that a riding lawnmower manufactured by Exmark was defective or
      unreasonably dangerous due to the lack of a Rollover Protective Device”).

      The Texas Supreme Court has granted mandamus relief in several product-liability

cases when a discovery order covered products “the plaintiff never used.” In re Graco

Children’s Prods., 210 S.W.3d 598, 600-01 (Tex. 2006) (orig. proceeding); see In re Alford

                                             9
Chevrolet-Geo, 997 S.W.2d at 180 n.1 (providing that a request was overly broad when it

sought information on a product different from the allegedly defective product at issue); In

re Am. Optical Corp., 988 S.W.2d at 713 (reversing a discovery order regarding respiratory

equipment the plaintiffs never alleged they used); Texaco, Inc., 898 S.W.2d at 814

(reversing a discovery order regarding substances to which the plaintiffs never alleged

exposure); Gen. Motors Corp. v. Lawrence, 651 S.W.2d 732, 734 (Tex. 1983) (reversing

a discovery order regarding vehicles without the fuel filler-neck that was allegedly

defective); see also In re Merck & Co., 150 S.W.3d 747, 750 (Tex. App.–San Antonio

2004, orig. proceeding) (disallowing discovery on a “pharmaceutical product that the

deceased plaintiff never used, that has yet to be sold within the United States, and that has

a different chemical structure and patent than the purportedly defective medication at

issue”); In re Sears Roebuck & Co., 123 S.W.3d 573, 578 (Tex. App.–Houston [14th Dist.]

2003, orig. proceeding) (disallowing discovery of products to which plaintiff was never

exposed).

       Nevertheless, Exmark’s argument misconstrues the scope of allowable discovery

under the rules pertaining to discovery and Texas Supreme Court precedent regarding the

discovery of safer alternative designs. The following discussion from the supreme court

is instructive:

       The trial court limited discovery to knowledge and information based on
       records pertaining to 1971-77 Vegas and Astres. The trial court was
       persuaded that other vehicles were not substantially similar to the Jampoles’
       1976 Vega Hatchback; therefore, he concluded that tests on those vehicles
       were not relevant.

       Jampole contends that it was a clear abuse of discretion for the trial court to
       deny discovery of alternate design documents. Jampole argues that the
       requested documents are relevant to his strict liability claim because they
       could show the availability and feasibility of safer alternatives. In Boatland
       of Houston, Inc. v. Bailey, 609 S.W.2d 743, 746 (Tex. 1980), we held that

                                             10
       whether a product is defectively designed must be determined in relation to
       safer alternatives; thus, evidence of the actual use of, or capacity to use,
       safer alternatives is relevant. See also Ford Motor Co. v. Nowak, 638
       S.W.2d 582, 585 (Tex. App.–Corpus Christi 1982, writ ref’d n.r.e.). The
       basic issue in this lawsuit is whether the 1976 Vega hatchback fuel tank
       design was defective because it allowed fuel to escape. Other designs that
       may have prevented fuel escaping are relevant to show that the Vega tank
       was unreasonably dangerous. Furthermore, the documents showing GMC’s
       knowledge of alternative designs are relevant to show conscious indifference
       in support of Jampole’s claim of gross negligence.

       The trial court, in balancing the rights of the parties, took an unduly restrictive
       view of the degree of similarity necessary for tests on other vehicles to be
       relevant. The automobiles need not be identical in order for tests on one to
       be relevant in determining whether the design of another is defective. Design
       differences between vehicles that might prevent certain alternatives from
       being adapted to the hatchback design do not necessarily undermine the
       relevance or discoverability of documents relating to those alternatives.
       Whether a safer fuel system design suitable for one vehicle is adaptable to
       another is a question of feasibility to be decided by the trier of fact, not a
       question to be resolved in ruling on discovery requests. Moreover, if it were
       impossible to incorporate a safer design in the fuel system of a 1976 Vega
       Hatchback, the existence of that design would be relevant to establish
       liability for failure to warn. The time period requested is not overly broad,
       and Jampole has limited his request to include only tests on GMC passenger
       cars. There being no valid claim of privilege or limitation invoked, the trial
       court’s denial was a clear abuse of discretion.

Jampole v. Touchy, 673 S.W.2d 569, 573-574 (Tex. 1984) (disapproved on other grounds

by Walker, 827 S.W.2d at 843); see General Motors Corp., 651 S.W.2d at 734 (reversing

a discovery order pertaining to all vehicles designed, manufactured or sold by General

Motors and instead ordering that “[d]iscovery should be limited to records of trucks for

model years 1949 through 1972, and should include all impact test results, regardless of

the direction of impact”).

       Fundamentally, the scope of discovery is obviously much broader than the scope

of admissible evidence, and evidence of incidents involving other products besides the




                                               11
exact model at issue can be admissible, and therefore, obviously, discoverable.4 The

supreme court addressed the narrower issue of admissibility in Nissan Motor Co. Ltd. v.

Armstrong:

        Other accidents are admissible for some purposes and not for others. For
        example, other accidents may be relevant to show whether:

        • a product was unreasonably dangerous;

        • a warning should have been given;

        • a safer design was available;

        • a manufacturer was consciously indifferent toward accidents in a claim for
        exemplary damages.

145 S.W.3d 131, 138-39 (Tex. 2004) (citing Hernandez v. Tokai Corp., 2 S.W.3d 251, 258

(Tex. 1999); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 340-41 (Tex. 1998);

General Motors Corp. v. Saenz, 873 S.W.2d 353, 356 (Tex. 1993); Gen. Chem. Corp. v.

De La Lastra, 852 S.W.2d 916, 921-22 (Tex. 1993); Boatland of Houston, Inc. v. Bailey,

609 S.W.2d 743, 746 (Tex. 1980)). Significantly, the Nissan court expressly recognized

the admissibility of incidents to show that a safer design was available, citing both the

Hernandez and Boatland cases. Indeed, because product liability claimants must prove

a safer “alternative” design, see TEX . CIV. PRAC . & REM . CODE ANN . § 82.005, it would be

absurd to limit discovery to the specific model at issue because that would necessarily

preclude discovery on alternative designs. Moreover, we also note that the similarity of the

products need not be identical, as Exmark seems to argue, because the similarity may be

        4
          As stated by our sister court of appeals: “[r]elevance should not be confused with adm issibility.
Adm issibility is not required for inform ation to be discoverable.” In re Pilgrim’s Pride Corp., 204 S.W .3d 831,
836 (Tex. App.–Texarkana 2006, orig. proceeding) (citing T EX . R. C IV .P. 192.3(a); Axelson, Inc. v. McIlhany,
798 S.W .2d 550, 553 (Tex. 1990)).




                                                       12
defined in terms of the defect and any differences among the products may merely go to

the weight of the evidence and not its discoverability or admissibility. See Jackson v.

Firestone Tire & Rubber Co., 788 F.2d 1070, 1082-83 (5th Cir. 1986); see also Uniroyal

Goodrich Tire, 977 S.W.2d at 341; Davidson Oil Country Supply, Inc. v. Klockner, Inc., 908

F.2d 1238, 1245 (5th Cir. 1990).

       We note that many other decisions from courts around the nation reject the notion

that discovery in a strict product liability case is uniformly limited to the specific product at

issue. See, e.g., In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1191 (10th Cir. 2009)

(holding that discovery on other tires was not overbroad where plaintiffs alleged that

defendant was aware of tread separation problem); Brownlow v. General Motors Corp.,

No. 3:05CV-414-R, 2007 U.S. Dist. LEXIS 67973, at *15, (W. D. Ky. 2007) (order)

(“Information concerning prior models of GM U-Vans would remain relevant to issues of

defect, notice of defect and GM’s possible failure to respond to an alleged defect; whereas,

discovery of information related to later models would remain relevant to reasonable

alternative designs and their performance.”); Mann ex rel. Akst v. Cooper Tire Co., 816

N.Y.S.2d 45, 55 (N. Y. App. Div. 2006) (holding that scope of discovery in tread separation

case should include “documents relating generally to the tread separation defect or

problem” because otherwise the defendant would not produce “documents probative on

the issues of notice, defectiveness and dangerousness”); Cardenas v. Dorel Juvenile

Group, Inc., 230 F.R.D. 611, 614-16 (D. Kan. 2005) (granting plaintiff’s motion to compel

the production of information concerning the defendant manufacturer’s European version

of a child car seat in a lawsuit involving a child car seat manufactured by the same parent

corporation in the United States where the discovery was relevant to the feasibility of a

safer alternative design); Herman v. Andrews, 50 S.W.3d 836, 844 (Mo. App. E. D. 2001)

                                               13
(holding that plaintiffs’ request for substantially similar product types was not overbroad,

unduly burdensome or oppressive); Preston v. Montana Eighteenth Judicial Dist. Court,

Gallatin County, 936 P.2d 814, 818-20 (Mont. 1997) (allowing discovery of injuries caused

by similar products and discovery about various product models as relevant to whether the

design was unreasonably dangerous and whether the defendant was aware of the danger

and a viable alternative design); Calo v. Ahearn, 522 N.Y.S.2d 555, 556 (N. Y. App. Div.

1 Dept. 1987) (“Although the vehicle type of the automobile involved in the accident was

the subject of the recall campaign, it is undisputed that the Ahearn vehicle was not among

those listed in the recall. However, it was within the legitimate scope of discovery to attempt

to determine if the recall campaign erroneously omitted vehicles with the same or similar

steering defects.”); Culligan v. Yamaha Motor Corp., USA, 110 F.R. D. 122, 124-25 (S. D.

N. Y.1986) (holding that information about post-manufacture testing was relevant and

discoverable in ATV rollover case even though it dealt with models other than the ATV

model at issue in order to show feasibility of alternative designs).

       We are especially disinclined to second-guess the trial court in this matter because

Exmark’s allegation that the discovery could encompass over 300 models of lawnmowers

is an argument based on the claim that every model of zero-turn riding lawnmower

changed every year of production so, according to Exmark’s argument, each model year

of every model was a wholly separate and distinct product entirely dissimilar from every

other year’s production of every model.        Yet there is no evidence addressing how

model-to-model distinctions regarding fuel tank capacity, comfort features on the riding

lawnmower’s driver’s seat, and the presence or absence of cup holders and storage

compartments and similar items could possibly have any bearing on the need or lack of

need for a rollover protection system. The real parties in interest argued that Exmark’s

                                              14
claims were misleading and disingenuous. In light of this dispute, the trial court’s ruling

may have reflected some measure of judging the credibility of the arguments, and the trial

court is certainly better positioned than the reviewing court to make such credibility

determinations.

       We conclude that the discovery order at issue here was reasonably tailored to the

relevant product defect and was not impermissibly overbroad. In re SCI Tex. Funeral

Servs., 236 S.W.3d 759, 761 (Tex. 2007) (orig. proceeding). The order focuses on the

production of documents about the inclusion or the lack of rollover protective systems on

zero-turn riding lawnmowers and focuses on different models of the same basic product

rather than different products. The order at issue is saliently different from the discovery

orders that were reversed by the supreme court insofar as, in the instant case, there is a

connection between the alleged defect and the discovery ordered. The order compels

discovery of documents that are reasonably calculated to lead to the discovery of

admissible evidence regarding whether Exmark knew about the necessity for, or defects

in, its rollover protective systems. In reaching this conclusion, we note that we do not

consider countervailing factors such as the burden, expense, and time needed to produce

the proposed discovery given that Exmark did not provide evidence on these issues.

                                      V. TIME FRAME

       Exmark contends that it “should not be compelled to produce documents over an

unreasonably long time period, including a time period that exceeds ten years prior to the

accident in question and, in some cases, pre-dates the date of manufacture for the exact

product at issue.” Exmark contends that the trial court’s order fails to “limit the requests

to the time period in which the Lazer Z HP was manufactured without the Rollover

Protection System or the time period (i.e., one day) in which the Plaintiff used the exact

                                            15
lawnmower at issue.” Exmark contends that the time limitations of between eleven and

thirteen years for some of the requests did not “adequately tailor” the dispute.

       A discovery order “requiring document production from an unreasonably long time

period” is “impermissibly overbroad and may be subject to mandamus relief.” In re Dana

Corp., 138 S.W.3d at 301 (quoting In re CSX Corp., 124 S.W.3d at 152).

       In the instant case, the lawnmower at issue was manufactured on August 28, 1998,

and was shipped on May 11, 1999. Castillo was injured while utilizing the lawnmower on

July 31, 2008. The trial court’s order generally encompasses periods of time from January

1, 1995 to January 1, 2004, or 1995 to present.

       Exmark complains about the time parameter on some of the discovery ordered, but

Exmark offered no evidence to give the trial court any useful guidance in evaluating

whether one time frame for discovery was comparatively burdensome in contrast to

another proposed time frame. We further note that Exmark has cited no authority

supporting its proposition that discovery should be limited in temporal scope to the single

day that the product caused the injury or the period of time in which the product was

manufactured before a different design was implemented.

       Many of the requests which Exmark complains about entail documents pertaining

to the different versions of Exmark’s zero-turn riding lawnmower and different model years

of those same zero-turn riding lawnmowers. However, Exmark indicated to the trial court

that it only began making the zero-turn riding lawnmowers in 1998. Whether discovery

covering this time period through the present is overbroad as a matter of law, or sufficiently

tailored to the issues raised in the underlying case, is a question that would need to be

answered on a case-by-case basis with some evidence to guide the trial court. While a

discovery order that covered a ten-year period might be too broad under some

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circumstances, there is certainly nothing too broad as a matter of law about all discovery

orders covering ten years. See, e.g., In re Energas Co., 63 S.W.3d 50, 55-56 (Tex.

App.–Amarillo 2001, orig. proceeding); Miller, 775 S.W.2d at 59. In this case, there is

simply not sufficient evidence in the record for us to second-guess the scope of the trial

court’s discovery order.

                                      VI. MORE RELIEF

       Exmark complains the trial court ordered more discovery than was sought by

plaintiffs. We agree that a party cannot be compelled to produce, or sanctioned for failing

to produce, that which it has not been requested to produce. See In re Lowe’s Companies,

Inc., 134 S.W.3d 876, 880 n.1 (Tex. App.–Houston [14th Dist.] 2004, orig. proceeding).

According to Exmark, the trial court’s order compels the production of categories of

documents that were not sought in real parties’ discovery requests. For ease of reference,

portions of the specific requests for production and the complained-of portions of the trial

court’s order are juxtaposed below:

       Request for Production 14 asks for “[a]ny and all internal documents.” The
       trial court’s order requires production of “any and all internal memoranda,
       correspondence or emails.”

       Request for Production 15 asks for “[a]ny and all internal documents, memos
       or letters.” The trial court’s order requires production of “any and all internal
       memoranda, correspondence, or emails.”

       Request for Production 17 asks for “[a]ny and all drawings or diagrams.” The
       trial court’s order requires production of “any design, drawings, or diagrams.”

       Request for Production 42 asks for “[a]ny and all guides, directions or
       warnings that you have prepared relating to the proper connection of any
       Rollover Protective Device on riding lawnmowers designed and/or
       manufactured by you, including any and all of its component parts.” The trial
       court’s order states that “Exmark shall produce all guides, directions or
       warnings that were prepared by or for Exmark identifying the proper
       installation, repair, removal or replacement of a Rollover Protective Device
       on the Riding Lawnmower involved in the accident forming the basis of this

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       case and any subsequently manufactured Lazer-Z zero turn riding
       lawnmowers.”

       Request for Production 43 asks for “[a]ny and all marketing materials
       generated by you relating to the Riding Lawnmower and Rollover Protective
       Devices, including any and all of its component parts.” The trial court’s order
       requires production of “all marketing material regarding the Lazer-Z HP and
       Rollover Protection Devices [sic] zero-turn riding lawnmowers from 1998 to
       the present.”

The rules of civil procedure expressly provide for discovery of documents and tangible

things “including papers, books, accounts, drawings, graphs, charts, photographs,

electronic or videotape recordings, data, and data compilations.” See TEX . R. CIV. P.

192.3(b). Contrary to Exmark’s argument, the trial court’s order actually limited the scope

of the documents ordered produced by utilizing more specific terminology than utilized in

the real parties’ original requests for production. Accordingly, this aspect of the trial court’s

order did not constitute an abuse of discretion.

                         VII. RESTRICTION OF RELATOR ’S “OPTIONS”

       Exmark next contends that the trial court’s order unreasonably restricts its options

and forces it to comply with “requirements that are outside the scope of the Texas Rules

of Civil Procedure.” The order at issue requires Exmark to “identify each . . . tangible item

responsive to each Request for Production or by general categories of documents.”

According to Exmark, the order compels it to “organize its production in a manner more

restrictive than the rules allow” because it eliminated its ability to produce documents and

tangible things as they are kept in the normal course of business.

        Under Texas Rule of Civil Procedure 196.3(c), “the responding party must either

produce documents and tangible things as they are kept in the usual course of business

or organize and label them to correspond with the categories in the request.” TEX . R. CIV.

P. 196.3(c); see In re Colonial Pipeline, 968 S.W.2d 938, 942 (Tex. 1998) (orig.

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proceeding) (holding that this rule does not require the creation of an “inventory” of

documents to be produced).

       Contrary to Exmark’s argument, the rules expressly and explicitly allow for the mode

of production specified by the trial court and in fact, the trial court’s order is less onerous

than authorized by the rules because it allows Exmark to identify each item by “general

categories of documents.” According to Exmark, the time and expense required to

organize and label documents tying them to one or more of the discovery requests

prejudices relator as it is both unduly burdensome and contrary to the rules. Significantly,

however, Exmark has produced no evidence herein substantiating its claim that the trial

court’s order is overburdensome or unduly expensive.

       Based on the foregoing, we conclude that this aspect of the trial court’s order does

not represent an abuse of discretion.

                                VIII. TIME FOR PRODUCTION

       Exmark next contends that the trial court’s order implements an unreasonably short

time line for compliance because it requires production within ten days from the issuance

of the order.

       A trial court has discretion to schedule discovery. In re Colonial Pipeline Co., 968

S.W.2d at 943; see, e.g., TEX . R. CIV. P. 190.5, 191.1. Moreover, the rules of civil

procedure provide that the trial court may shorten or lengthen the time for making a

response for good cause. See id. A trial court can, however, abuse its discretion by acting

in an unreasonable manner. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916,

917 (Tex. 1985). We examine the trial court’s order to determine if it is reasonable under

the circumstances. In re Colonial Pipeline Co., 968 S.W.2d at 943.

       Real parties in interest propounded discovery to Exmark in February 2009. Rule

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196.2 allows a party fifty days to respond to requests for production if, as was the case

here, the requests were served contemporaneously with the petition, or thirty days to

respond if the requests are served after an answer has been field. See TEX . R. CIV. P.

196.2. By agreement, the parties delayed the deadline for the formal production of

documents until after mediation, which was held on May 14, 2009. Exmark formally

responded to the requests for production on June 4, 2009. Real parties filed a motion to

compel on June 9, 2009, and the trial court conducted a hearing two weeks later, on June

25, 2009.

       At the hearing, the parties focused on a draft order furnished by the real parties in

interest on June 24, 2009, which required production within thirty days. Relator filed

objections to the real parties’ proposed order on July 6 and 10, 2009. On July 8, the trial

court signed an order submitted by Exmark requiring production within thirty days. On July

13, the trial court signed an order submitted by real parties in interest requiring production

within ten days. On July 20, upon learning of the conflicting orders, the trial court entered

an order extending the deadline for Exmark’s responses by one day. The trial court

ultimately issued the order at issue herein on July 21, 2009, which compelled production

within ten days. This order was stayed by order of this Court.

       Exmark’s discovery in this matter was due in June. The motion to compel was filed

and heard during the month of June. When the trial court signed Exmark’s proffered order

on July 8, it required production by August 7, 2009. The order ultimately issued by the trial

court required production by July 24, 2009, a difference of two weeks. Based on the

foregoing, and in the absence of any evidence regarding the duration of time necessary

to respond, we conclude that the trial court’s order was reasonable under the

circumstances and that it was not an abuse of discretion to require compliance within ten

                                             20
days.

                                      IX. CONCLUSION

        “Only in certain narrow circumstances is it appropriate to obstruct the search for

truth by denying discovery.” State v. Lowry, 802 S.W.2d 669, 671 (Tex. 1991). The

discovery order herein is reasonably tailored to the circumstances of the case and focuses

on documents pertaining to the alleged defect, that is, the lack of a rollover protection

system on a riding lawnmower, whether Exmark had notice of that alleged defect, Exmark’s

response to any notice of an alleged defect, any injuries allegedly caused by the lack of

a rollover protective device, and reasonable alternative designs and their performance.

The information sought is not “patently irrelevant.” In re CSX Corp., 124 S.W.3d at 153.

The trial court’s order was not arbitrary and unreasonable and it did not constitute a clear

abuse of discretion.

        Accordingly, the Court, having examined and fully considered the petition for writ of

mandamus, the response, and the reply thereto, is of the opinion that relator has not

shown itself entitled to the relief sought. The stay previously imposed by this Court is

LIFTED. See TEX . R. APP. P. 52.10(b) (“Unless vacated or modified, an order granting

temporary relief is effective until the case is finally decided.”). The “Motion to Modify Stay

Order” filed by the real parties in interest is DISMISSED as moot. The petition for writ of

mandamus is DENIED. See id. 52.8(a).

                                                         _______________________
                                                         ROGELIO VALDEZ
                                                         Chief Justice

Opinion delivered and filed this
the 30th day of October, 2009.




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