573 S.W.3d 464
Tex. App.2019Background
- Sutherland/Palumbo, LLC sued six defendants in a commercial real-estate dispute alleging fraud, nondisclosure, conspiracy, DTPA and other claims; amended petition served broad written discovery and deposition notices.
- Defendants filed TCPA motions to dismiss, which by statute stay discovery except for "specified and limited" discovery on a showing of "good cause."
- Sutherland moved for discovery to respond to the TCPA motions; the trial court initially granted broad discovery, stayed, then entered a March 1, 2019 Discovery Order allowing extensive written discovery and multiple four-hour corporate representative depositions on 43 topics.
- Defendants sought mandamus relief in the court of appeals, arguing (1) Sutherland failed to show good cause, (2) the ordered discovery was not "specified and limited" or relevant to the TCPA motions, and (3) no adequate appellate remedy existed.
- The court of appeals held Sutherland established "good cause" for some discovery but the Discovery Order was overly broad and not "specified and limited" as required by Tex. Civ. Prac. & Rem. Code § 27.006(b); it conditionally granted mandamus directing the trial court to vacate and issue a new, limited order after a hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff showed "good cause" to allow discovery during pendency of TCPA motions | Discovery was needed because defendants possess key documents/witnesses; plaintiff must meet prima facie burden on many elements and needs evidence held by defendants | Plaintiff did not show good cause to overcome TCPA discovery stay | Court: plaintiff showed good cause for some discovery (issue overruled) |
| Whether the Discovery Order complied with TCPA requirement that discovery be "specified and limited" and relevant to the motions | Discovery sought was relevant to proving prima facie elements and to rebut defendants' blanket attacks on all claims | The order permitted overly broad, case-wide written discovery and many lengthy depositions untethered to specific issues in the TCPA motions | Court: Discovery Order was not "specified and limited," exceeded scope permitted by §27.006(b), and was an abuse of discretion (issue sustained) |
| Whether defendants lack an adequate appellate remedy and are entitled to mandamus | N/A (defendants argued mandamus necessary because harm from excessive discovery is not remedied on appeal) | N/A | Court: No adequate remedy on appeal; mandamus relief warranted to correct overly broad TCPA discovery (issue sustained) |
Key Cases Cited
- In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300 (Tex. 2016) (mandamus proper to correct clear abuse of discretion when no adequate appellate remedy exists)
- State v. Walker, 679 S.W.2d 484 (Tex. 1984) (mandamus standard regarding adequate remedy)
- In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (weighing benefits and detriments of mandamus as an adequate remedy)
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (clarifying abuse-of-discretion standard for appellate review)
- In re CSX Corp., 124 S.W.3d 149 (Tex. 2003) (burden on party resisting discovery to show abuse of discretion; discovery exceeding rules may merit mandamus)
- In re Colonial Pipeline Co., 968 S.W.2d 938 (Tex. 1998) (discovery's purpose and limits; seek truth but balance against abuse)
- D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429 (Tex. 2017) (discussing TCPA's balance between First Amendment protections and meritorious lawsuits)
- Beving v. Beadles, 563 S.W.3d 399 (Tex. App.—Fort Worth 2018) (TCPA interpretation and limits)
- Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71 (Tex. App.—Houston [1st Dist.] 2013) (applying prima facie/limited-discovery concept under TCPA)
- In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218 (Tex. 2004) (definition of a prima facie case for mandamus context)
- In re Am. Optical Corp., 988 S.W.2d 711 (Tex. 1998) (mandamus appropriate for discovery orders well outside proper bounds)