in Re John Crane, Inc.

Opinion issued November 13, 2003

In The

Court of Appeals

For The

First District of Texas

NO. 01-03-00698-CV

____________

IN RE JOHN CRANE INC., Relator

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

By petition for writ of mandamus, relator, John Crane Inc., challenges the June

13th and June 23rd orders from the trial court compelling discovery responses.

We

grant the petition for writ of mandamus.

Factual and Procedural Background

John Crane sells gaskets and manufactures sealing products, including packing

material for valves and pumps. Carl Terranova, the real party in interest, alleged that,

while working at the Boston Naval Shipyard in Boston, Massachusetts, he was

exposed to John Crane’s gaskets and sealing materials which contained asbestos.

Terranova sued John Crane and propounded discovery requests which included

78 interrogatories and 60 requests for production. John Crane timely objected,

contending that the discovery requests were overbroad, unduly burdensome, and were

not tied to particular products which Terranova allegedly used or was exposed to, or

to time periods of such use.

Terranova filed a motion to compel production of documents, but a hearing on

the motion was postponed while the parties attempted to resolve their discovery

dispute. Terranova filed a supplemental motion to compel, and the trial court granted

the motions to compel. John Crane filed this mandamus complaining, specifically,

about being compelled to respond to requests for production 1, 2, 4, 5, 6, 10, 11, 23,

34, 35, 39, 42, 51, 52, 55, 56, 57, and 59 and interrogatories 72 and 76. In his

response to John Crane’s petition for writ of mandamus, Terranova withdrew most

of the discovery requests at issue and modified several others.

This Court issued temporary orders staying all proceedings pending the trial

court’s order regarding the discovery requests Terranova offered to withdraw. The

trial court issued a new order modifying its earlier order compelling discovery

responses. John Crane filed a supplemental petition for mandamus that abandoned

most of the complaints in its original petition and narrowed its requested mandamus

relief to three discovery questions—requests for production 35 and 42 and

interrogatory 76.

Discovery Orders

In three points of error, John Crane argues that (1) request for production 42

is overbroad as a matter of law, (2) request for production 35 is impermissibly

overbroad, and (3) interrogatory 76 is overbroad on its face and is not limited to any

particular product.

Recognizing the potential for abuse, the Texas Supreme Court and others have

articulated principles and adopted procedural devices to curb discovery abuse. First,

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

case. See In re American Optical Corp. , 988 S.W.2d 711, 713 (Tex. 1998); Texaco,

Inc. v. Sanderson , 898 S.W.2d 813, 814 (Tex. 1995). Second, discovery may not be

used as a fishing expedition or to impose unreasonable discovery expenses on the

opposing party. See K Mart Corp. v. Sanderson , 937 S.W.2d 429, 431 (Tex. 1996).

Third, a court may “in the interest of justice,” issue a protective order to “protect the

movant from undue burden, unnecessary expense, harassment, annoyance, or invasion

of personal, constitutional, or property rights.” Tex. R. Civ. P. 192.6(b). The new

discovery rules explicitly encourage trial courts to limit discovery when “the burden

or expense of the proposed discovery outweighs its likely benefit, taking into account

the needs of the case, the amount in controversy, the parties’ resources, the

importance of the issues at stake in the litigation, and the importance of the proposed

discovery in resolving the issues.” Tex. R. Civ. P. 192.4(b); In re Alford

Chevrolet-Geo ., 997 S.W.2d 173, 180-81 (Tex. 1999). Although a trial court has

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

discretion by acting unreasonably. See In re Colonial Pipeline Co. , 968 S.W.2d 938,

941 (Tex. 1998). A party resisting discovery, however, 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 Garcia v. Peeples , 734 S.W.2d 343, 345 (Tex.

1987).

Mandamus is an extraordinary remedy, available only when a trial court clearly

abuses its discretion and when there is no adequate remedy on appeal. Walker v.

Packer , 827 S.W.2d 833, 840-44 (Tex. 1992). An appellate remedy may be adequate

even though it involves more delay or cost than mandamus. Id . at 842. An appeal

from a trial court’s discovery order is not adequate if: (1) the appellate court would

not be able to cure the trial court’s error on appeal; (2) the party’s ability to present

a viable claim or defense is vitiated or severely compromised; or (3) missing

discovery cannot be made a part of the appellate record. Id . at 843; In re Kellogg

Brown & Root , 7 S.W.3d 655, 657 (Tex. App.—Houston [1st Dist.] 1999, orig.

proceeding).

John Crane lodged various objections to each of the discovery requests to

which it was ultimately compelled to respond. Before answering and responding to

the interrogatories and requests for production, John Crane lodged a general

objection. Specific objections were found after each request. The general objection

was as follows:

John Crane Inc. objects to each and every Interrogatory and Request for

Production that relates to periods of time, geographical areas, or

activities outside the scope of the allegations of the underlying

complaint in that such Interrogatory is irrelevant, overly broad, not

reasonably calculated to lead to the discovery of admissible evidence,

and would impose an unnecessary burden on John Crane Inc., to search

out, review, organize and produce information and documents which are

not relevant to any issue in this case, and it would be oppressive to

require this party to do so. Defendant has never manufactured, supplied,

sold or produced asbestos insulation products. Defendant manufactures

engineered sealing products, some of which contained asbestos but

which encapsulated the fibers in lubricants, binders and adhesives so as

to prevent their release in normal use and installation.

With this general objection in mind, we will review the requests, individually.

Request for Production 35

In point of error two, John Crane contends that request for production 35 is

impermissibly overbroad. The request reads as follows:

35.Any and all documents reflecting the acquisition, through

purchase, reorganization, merger or otherwise, of another

company by defendant that manufactured, sold, processed,

distributed, or supplied asbestos or materials or products

containing asbestos.

John Crane did not re-urge its general objection, but objected to the relevance of this

request. It further responded that

Crane Packing Company was organized in Illinois in 1917 and began the

manufacture and sale of asbestos-containing products about 1930. It

merged with John Crane-Houdaille, Inc., a Delaware corporation, on

August 3, 1981. On March 27, 1988, Defendant changed its name to

John Crane Inc.

John Crane supplemented its response and added that “Defendant, John Crane Inc.,

does not contest responsibility for the sales of asbestos-containing products by Crane

Packing Company and John Crane Houdaille, Inc.” In its June 23rd order, the trial

court required John Crane to “provide responsive documents and items.”

In its petition, John Crane argues that the request, as written, would require it

to produce documents and drafts related to “negotiations, merger agreements,

insurance, employee pension benefits, taxes, debts, financing arrangements, and

corporate resolutions, just to name a few.” Terranova responded that the information

is relevant to determine when John Crane obtained knowledge regarding the health

hazards of asbestos. That information, however, would not logically stem from the

request as phrased. Terranova also contends that the knowledge of previous owners

could be imputed to John Crane. However, John Crane specifically stated in its

response that it does not contest the responsibility of the previous owners. Finally,

Terranova argues that, even if the information is irrelevant, discovery orders

mandating the disclosure of irrelevant documents are not ordinarily sufficient to

justify mandamus relief. See Tilton v. Marshall , 925 S.W.2d 672, 682-83 (Tex.

1996).

In Tilton , the Texas Supreme Court further stated that “however, ‘[w]here a

discovery order compels the production of patently irrelevant or duplicative

documents, such that it . . . imposes a burden on the producing party far out of

proportion to any benefit that may obtain to the requesting party,’ mandamus relief

may also be justified.” Id . (tithing record) (citing Walker , 827 S.W.2d at 843 ); see

Sears, Roebuck & Co. v. Ramirez , 824 S.W.2d 558 (Tex. 1992) (demand for tax

returns); General Motors Corp. v. Lawrence , 651 S.W.2d 732 (Tex. 1983) (demand

for information about all vehicles for all years); s ee also Sanderson , 898 S.W.2d at

815 (“While plaintiffs are entitled to discover evidence of [Texaco’s] safety policies

and practices as they relate to the circumstances involved in their allegations, a

request for all documents authored by [the safety director] on the subject of safety,

without limitation as to time, place or subject matter, is overbroad.”).

Here, the request, as written, required John Crane to produce documents related

to acquisitions spanning 86 years of business. The burden imposed on John Crane

is far out of proportion to any benefit to Terranova. See Tilton , 925 S.W.2d at 683 .

In its discovery response, John Crane acknowledged that it does not contest

responsibility for the sales of asbestos-containing materials of any of its predecessors;

therefore, Terranova’s justification for seeking the documents is rendered moot. We

hold that the trial court abused its discretion when it compelled John Crane to respond

to request for production 35, which is impermissibly overbroad, and because the

expense involved in complying with the request is unduly burdensome, John Crane

would have no adequate remedy on appeal.

We sustain point of error two.

Request for Production 42

In point of error one, John Crane argues that request for production 42 is

overbroad as a matter of law. The request reads as follows:

42.Any and all documents reflecting the physical or chemical

composition, makeup or breakdown of any and all asbestos-containing materials or products or components of asbestos-containing materials or products manufactured, sold, and/or

distributed by Defendant.

John Crane re-urged its general objection and did not supplement its response. The

trial court’s June 23rd order required John Crane to “provide responsive documents

and items, as to the years prior to and including 1990.”

In its petition, John Crane argues that the request requires it to “produce an

ocean of documents without any reasonable limitation.” John Crane contends that it

has been in existence since 1917 and has manufactured “hundreds of asbestos-containing products.” Further, because the request is not tied to a particular product

Terranova claimed to have used and is not limited to time periods in which such use

may have occurred, the request is “demanding the impossible.”

Terranova argues that, because John Crane’s general objection stated that its

products were safe because the asbestos was encapsulated, the chemical composition

of the products is relevant to ascertain the effectiveness of the encapsulation.

However, the request does not ask for the information as it relates to

Terranova’s exposure. It simply asks for any and all asbestos-containing products.

John Crane submitted an affidavit from George R. McKillop, a former product

manager in its packing division. McKillop testified that sales records for asbestos-containing products are available from 1977 to 1985 on microfilm. He further

testified that searching for sales records requires searching through “several hundred

thousand documents” and would “cost well over $100,000” to copy. The request is

overbroad and not reasonably calculated to lead to the discovery of admissible

evidence. We hold that the trial court abused its discretion when it compelled John

Crane to respond to request for production 42, which is overbroad, and because the

expense involved in complying with the request is unduly burdensome, John Crane

would have no adequate remedy on appeal.

We sustain point of error one.

Interrogatory 76

In point of error three, John Crane argues that interrogatory 76 is overbroad on

its face and is not limited to any particular product. The interrogatory reads as

follows:

76.Do any documents, including but not limited to written

memoranda, specifications, recommendations, blueprints, or other

written materials of any kind or character, relating to the design,

preparation, testing or introduction into the market of the products

listed in any of the prior interrogatories or your answers thereto

still exist? If so, state:

(a) A description of each such document.

(b)The name, address, and job title of each

person who currently has possession of

each document, and where the

documents are currently located.

John Crane re-urged its general objection and further objected that the interrogatory

was seeking irrelevant information because “such testing as it has done on its

asbestos-containing products was for quality control and performance specifications.”

John Crane’s answer concluded by stating that “Defendant has conducted no tests

relating to the safety of its asbestos-containing products, but is aware that attorneys

representing it in this and other litigation have retained experts who may have

conducted such tests.” In a supplemental answer, John Crane added that “defendant

is serving herewith a copy of its asbestos packing style list and copies of various sales

brochures in its possession.” In its June 13th order, the trial court ordered that,

for Interrogatory no. 76, which is already limited to asbestos-containing

materials or products, [John Crane] shall provide: substantive answers

which address the use of asbestos in those products, as opposed to some

other materials or components; the dates of production wherever [John

Crane] made or sold non-asbestos-containing materials; and whatever

testing [John Crane] did on its asbestos-containing products, as opposed

to its non-asbestos-containing products.

In its petition, John Crane complains that the discovery request is not limited to any

particular products or time periods during which any use may have occurred.

Terranova “disclaim[s] any interest in obtaining quality control and product

specification testing,” but argues that he is entitled to obtain information regarding

the safety testing which may have been conducted for litigation purposes. John Crane

did not make a “work product” objection. Further, Terranova contends that John

Crane has failed to produce evidence supporting its undue burden claim. See In re

Alford Chevrolet-GEO , 997 S.W.2d at 181 .

In response to its statement that its attorneys may have retained experts who

conducted tests, John Crane submitted an affidavit from Anthony Packard, an

attorney with the Law Offices of Nisen & Elliot. Packard testified that his firm is

retained counsel for John Crane in the defense of its asbestos-related litigation. He

testified that the defense of the more than 100,000 asbestos suits filed against John

Crane has been assigned to “well over 60 law firms located in various jurisdictions

throughout the United States,” and the expense associated with compiling data

concerning any product testing performed in such suits, both in man-hours and

detraction from other pending lawsuits “would result in an inordinate expense.” We hold that the trial court abused its discretion when it compelled John Crane

to respond to interrogatory 76, which is overbroad, and because the expense involved

in answering the interrogatory is unduly burdensome, John Crane would have no

adequate remedy on appeal. We sustain point of error three.

Conclusion

We grant John Crane Inc.’s petition for mandamus relief, order the trial court

to vacate its June 13th and June 23rd orders concerning requests for production 35

and 42 and interrogatory 72, conditionally issue the writ of mandamus, and lift our

stay. The writ will issue only if the trial court fails to comply. All outstanding

motions are denied.

George C. Hanks, Jr.

Justice

Panel consists of Justices Taft, Jennings, and Hanks.