Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion
filed December 8, 2011.




                                          In The

                       Fourteenth Court of Appeals
                                      ____________

                                   NO. 14-11-00883-CV
                                     ____________

                 IN RE KOMATSU AMERICA CORPORATION, Relator


                              ORIGINAL PROCEEDING
                                WRIT OF MANDAMUS
                                   165th District Court
                                  Harris County, Texas
                            Trial Court Cause No. 2010-77680


                      MEMORANDUM                    OPINION

        In this original proceeding, relator, Komatsu America Corporation (“Komatsu”),
seeks a writ of mandamus ordering the respondent, The Honorable Josefina M. Rendon,
Judge of the 165th District Court, Harris County, Texas, to set aside her orders dated
September 30, 2011, entered in trial court cause number 2010-77680, styled Mario
Salinas, et al v, Dorsett Bros. Concrete Supply, Inc., et al. We conditionally grant the
writ.

        The petition seeks to have two discovery orders signed September 30, 2011, vacated
because the trial court abused its discretion in compelling production. The first order
grants “Plaintiffs’ Motion to Compel Defendant Komatsu America Corp.’s Answer and
Responses to Plaintiffs’ Third Set of Written Interrogatories and Third Request for
Production of Documents.” The second order grants “Plaintiffs’ Motion to Compel
Defendant Komatsu America Corp.’s Answer and Responses to Plaintiffs’ Fourth Set of
Written Interrogatories and Fourth Request for Production of Documents.”

       Komatsu first claims the trial court abused its discretion in ordering production of
documents that are not in its possession, custody or control. See Tex. R. Civ. P. 192.7(b).
Komatsu further claims the discovery requests are impermissibly overbroad.
Specifically, Komatsu complains of (1) request for production No. 1 and 2 of the Third Set;
(2) request for production No. 1 of the Fourth Set; and (3) Interrogatory No. 1 of the Third
Set.

       The Real Parties in Interest (“Plaintiffs”) make no argument to deny the petition on
its merits. Rather, plaintiffs have sought to have this court dismiss the petition as moot.
Plaintiffs have filed a motion to withdraw discovery in the trial court that moves to
withdraw the Third and Fourth Set of Interrogatories and Third and Fourth Request for
Production. We agree with Komatsu that the petition is not moot because the trial court’s
order is still in effect, though currently stayed by our order of October 13, 2011.

       However, plaintiffs have clearly demonstrated they no longer seek production of the
discovery compelled by the trial court’s orders of September 30, 2011. Therefore it would
not serve the interests of justice or judicial economy to address the merits of the petition for
writ of mandamus. Accordingly, in these unique circumstances, we conditionally grant
the petition for a writ of mandamus and direct the trial court to vacate its orders of
September 30, 2011.

       The writ will issue only if the trial court fails to act in accordance with this opinion.


                                                   PER CURIAM


Panel consists of Justices Brown, Boyce, and McCally.


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