in Re Platinum Energy Solutions, Inc. , 420 S.W.3d 342 ( 2014 )

Petition for Writ of Mandamus Conditionally Granted and Majority and
Dissenting Opinions filed January 2, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00681-CV
IN RE PLATINUM ENERGY SOLUTIONS, INC., Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
234th District Court
Harris County, Texas
Trial Court Cause No. 2012-30972
DISSENTING OPINION
In this mandamus proceeding, relator Platinum Energy Solutions, Inc.
asserts the trial court clearly abused its discretion by issuing two orders denying
Platinum’s motion for protective order, overruling Platinum’s discovery
objections, and compelling Platinum to produce documents requested by the real
parties in interest. Platinum seeks mandamus relief commanding the trial court to
vacate these two orders and to issue an order granting the requested protection.
Platinum does not complain that the trial court failed to address expressly whether
the requested documents at issue are within the scope of the discovery allowed by
section 21.556(a) of the Texas Business Organizations Code; rather, Platinum
complains that the trial court abused its discretion by determining that the
requested documents are within the scope of that provision and are discoverable. It
is unclear what mandamus relief this court is granting. And, contrary to binding
precedent, this court grants mandamus relief without identifying any abuse of
discretion by the trial court.
To the extent the majority concludes that the trial court abused its discretion
by failing to state expressly in its orders whether the requested documents are
within the scope of the discovery allowed by section 21.556(a),1 the trial court was
not required to make such a statement, and Platinum does not assert that the trial
court abused its discretion by failing to do so. To the extent the majority concludes
that the trial court abused its discretion by applying Nevada law under section
21.562(a) rather than Texas law under section 21.556(a), the majority contravenes
the legal principle that the trial court is presumed to have correctly applied the law.
Because the record does not reflect whether the trial court applied Nevada law
under section 21.562(a) or Texas law under section 21.556(a) in making the
challenged rulings, this court must presume that the trial court correctly applied
Texas law under section 21.556(a). Thus, the trial court did not apply Nevada law
under section 21.562(a), and there is no basis for a conclusion that the trial court
abused its discretion in this regard.
1
Unless otherwise specified, all statutory references in this opinion are to the Texas Business
Organizations Code.
2
This court should ascertain the extent to which the documents requested are
outside the scope of the discovery allowed by section 21.556(a) and grant
mandamus relief to the extent, if any, the trial court compelled production of these
documents.
What relief is this court granting?
Today, the court issues a final ruling in this mandamus proceeding. In doing
so, the court adjudicates all issues and lifts the stay. But, the court’s opinion raises
as many questions as it answers. Platinum asks this court to grant mandamus relief
ordering the trial court to vacate the two challenged orders and to issue an order
granting Platinum’s motion for protection. The majority twice states that this court
is conditionally granting Platinum’s petition for writ of mandamus, which means
that this court is ordering the trial court to vacate the two challenged orders and to
issue an order granting Platinum’s motion for protection; yet, the majority does not
state specifically that this court is granting this relief. The majority does
specifically direct the trial court to ―make an express determination as to the 43
categories of documents at issue, and to determine whether these categories pertain
to one or more of the areas of inquiry allowed by section 21.556(a),‖ but Platinum
has not requested this relief. Moreover, this language suggests that this court may
be dismissing Platinum’s mandamus petition for lack of ripeness under the theory
that Platinum’s petition is not ready for review unless and until the trial court
makes such an express determination. The parties and the trial court are entitled to
an unambiguous ruling on the petition and to a clear statement of the relief this
court is granting.
3
What was the trial court’s abuse of discretion?
Before this court may conditionally grant mandamus relief, it first must
determine that the trial court abused its discretion.2 Yet, the majority conditionally
grants mandamus relief without making any such determination. The closest the
majority comes is when it states: ―Therefore, the trial court acted beyond its
discretion insofar as it required production of the 43 categories of documents at
issue to occur based on a determination that section 21.562(a) governs this
inquiry‖3 But, the majority never states whether the trial court required this
production based on such a determination.4 Thus, contrary to binding precedent,
the majority conditionally grants mandamus relief without determining that the
trial court abused its discretion.5
2
See In re Bass, 113 S.W.3d 735, 738 (Tex. 2003) (holding appellate court cannot grant
mandamus relief absent determination that trial court abused its discretion); In re Labidi, 287
S.W.3d 922, 926 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding) (holding appellate
court cannot grant mandamus relief absent showing by relator that trial court abused its
discretion).
3
Ante at p.13 (emphasis added).
4
As discussed below, under binding precedent, the trial court did not require production of any
documents based on a determination that section 21.562(a) governs this inquiry. This court must
presume that the trial court correctly applied Texas law and section 21.556(a), and nothing in the
record rebuts this presumption. See Nexen, Inc. v.Gulf Interstate Engineering Co., 224 S.W.3d
412, 416–17 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Vickery v. Comm’n for Lawyer
Discipline, 5 S.W.3d 241, 251 (Tex. App.—Houston [14th Dist.] 1999, pet. denied); Ex parte
Jackson, 911 S.W.2d 230, 234 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding [hab.
denied]); State Nat’l Bank v. Academia, Inc., 802 S.W.2d 282, 290 (Tex. App.—Corpus Christi
1990, writ denied).
5
See In re Bass, 113 S.W.3d at 738; In re Labidi, 287 S.W.3d at 926.
4
Is it right to grant mandamus relief based on the trial court’s failure to make
an express statement in its orders as to whether the requested documents are
within the statutory scope of discovery?
The majority correctly concludes that section 21.556, entitled ―Discovery,‖
governs today’s discovery dispute and that the minority shareholders are limited to
discovery addressing (1) whether the Special Litigation Committee is independent
and disinterested; (2) whether the committee’s inquiry and review was undertaken
in good faith; and (3) the reasonableness of the procedures followed by the
committee in conducting the review.6 The majority then proceeds to grant
mandamus relief without specifying how the trial court abused its discretion. The
majority notes that, in the challenged orders, the trial court did not ―expressly
address whether the minority shareholders are entitled to production of the 43
categories at issue in light of section 21.556’s specific discovery limits.‖7 The
majority then directs the trial court to issue an order expressly stating whether the
trial court has concluded that these 43 categories of documents are within the scope
of discovery permitted by section 21.556(a).8 Thus, the majority appears to base
this court’s decision to grant mandamus relief on a conclusion that the trial court
abused its discretion by failing to state expressly in its orders whether the requested
documents are within the scope of the discovery allowed by section 21.556(a). If
this is the basis for today’s mandamus relief, it is not supported by the law or the
record.
6
See Tex. Bus. Orgs. Code Ann. § 21.556(a).
7
Ante at p. 13.
8
See ante at p. 14.
5
The trial court did not abuse its discretion by failing to state expressly in
its orders whether the requested documents are within the scope of the
discovery allowed by section 21.556(a).
In its motion for protective order, Platinum asserted that (1) the trial court
should issue an order protecting Platinum from producing any documents beyond
the documents Platinum produced before filing the motion; (2) the trial court
should limit the required production to five categories of documents; (3) section
21.556(a) applies to the discovery process in the underlying suit, and the 45
document requests are overbroad and encompass documents outside the scope of
the discovery allowed by this statute; and (4) the trial court should issue an order
disallowing the requested discovery. In their response, real parties in interest
Starstream Capital, LLC, Robert E. Chamberlain, Jr., Martha Derrick, Marvel K.
Mann, and John Dinn Mann (hereinafter the ―Shareholders‖) asserted that under
section 21.562(a), Nevada law, rather than Texas law, applies to the discoverability
of the requested documents.9 Though Platinum’s primary argument always has
been that Texas law and section 21.556(a) apply to this discovery dispute,
Platinum also has argued in the alternative that it would be entitled to a protective
order even if Nevada law applies.
As Platinum points out in its mandamus petition, at a hearing on its motion
for protective order, (1) Platinum argued that section 21.556(a) applies to the
9
The Shareholders asserted that, to the extent Nevada law applies, Nevada courts would follow
Delaware law on such issues, and the Shareholders briefed these issues under Delaware law.
Nonetheless, even presuming that Nevada courts would follow Delaware precedent on these
issues, under the Shareholders’ argument, this court still would be applying Nevada law rather
than Delaware law. Therefore, in this opinion, this alternative is described as applying Nevada
law rather than as applying Delaware law.
6
underlying case; (2) the trial court and counsel discussed section 21.556(a)’s limits
on discovery, and (3) without ruling on the motion at that time, the trial court
indicated it was inclined to conclude that all 45 document requests are within the
scope of the discovery allowed by section 21.556(a). After taking the motion
under advisement, the trial judge acted on his stated inclination and signed an order
denying Platinum’s motion for protective order ―in its entirety.‖ Using this
language is the same as saying the motion is ―in all things‖ denied, and in the
context of the denial of a motion, it means every individual part of the motion is
refused. Under the unambiguous language of the trial court’s order, the trial court
denied every single request in Platinum’s motion.10 Thus, in its July 15, 2013
order, the trial court ruled that (1) Platinum is not entitled to protection from
producing any documents beyond the documents Platinum already produced; (2)
the required production of documents should not be limited to five categories of
documents; and (3) the Shareholders’ 45 document requests are not overbroad and
do not encompass documents outside the scope of the discovery allowed by section
21.556(a).11
In its October 21, 2013 order, the trial court addressed a second time the
issue of whether the requested documents are within the scope of the discovery
allowed by section 21.556(a). The Shareholders moved to compel production of
10
See Deep Water Slender Wells, Ltd. v. Shell Int’l Exploration & Production, Inc., 234 S.W.3d
679, 693 & n.9 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (concluding that, although
trial court expressly referred to only one ground for granting the motion to dismiss in its
dismissal order, the trial court dismissed on both grounds asserted because the trial court stated
that it granted the motion ―in all things,‖ which means that the court dismissed based on all the
grounds in the motion).
11
See id.
7
the 45 categories of requested documents. In response, Platinum asserted that (1)
Texas law and section 21.556(a) apply to this discovery dispute; (2) the requested
discovery is overbroad and exceeds the scope of permissible discovery under
section 21.556(a); and (3) Platinum has produced all documents within the scope
of discovery permitted under section 21.556(a) and therefore no further production
should be ordered. Though, from the beginning, Platinum’s chief argument has
been that Texas law and section 21.556(a) apply to this discovery dispute,
Platinum also has asserted the alternative argument that the motion to compel
should be denied even if Nevada law applies. The trial court granted the
Shareholders’ motion to compel production of the requested documents, despite
Platinum’s argument that section 21.556(a) barred this discovery, and the trial
court expressly overruled Platinum’s objections to 43 discovery requests,12
including objections that the requests are overbroad and exceed the scope of
permissible discovery under applicable law.
The majority is simply incorrect to the extent it concludes the trial court
abused its discretion by failing to state expressly in its orders whether the requested
documents are within the scope of the discovery allowed by section 21.556(a).13
The majority cites no authority requiring the trial court to make such an express
statement, and such a requirement is contrary to precedent from the Supreme Court
12
The trial court did not rule on the objections to requests 5 and 6 because the Shareholders
withdrew these two requests at the hearing on their motion to compel. Therefore, only 43 of the
original 45 requests are currently at issue.
13
See ante at p. 12–14.
8
of Texas, this court, and sister courts of appeals.14 There is no requirement that the
trial court recite its rationale or detail its reasoning. All that is required is a ruling.
And, usually that is all that is given.
For example, in In re Sears, Roebuck & Co., this court granted mandamus
relief as to two orders compelling discovery because the discovery requests were
overbroad.15 This court concluded that the trial court sufficiently addressed the
overbreadth issues and that the two orders were ready for mandamus review even
though in the orders the trial court did not expressly provide an overbreadth
14
See Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 555–56 (Tex. 1990) (stating that, before a
discovery issue may be reviewed in an original mandamus proceeding, the trial court must have
denied a motion raising that issue, without imposing any requirement that the trial court
explicitly detail its reasoning or explicitly state the various issues it determined in ruling on the
motion); Douglas v. Redmond, No. 14-12-00259-CV, 2012 WL 5921200, at *7 (Tex. App.—
Houston [14th Dist.] Nov. 27, 2012, pet. denied) (holding that, when trial court does not specify
the basis for its ruling in its order, appellate courts must uphold the order on any legal theory
supported by the record) (mem. op.); In re Kenefick, No. 14-08-00203-CV, 2008 WL 3833842,
at *5–6 (Tex. App.—Houston [14th Dist.] Aug. 19, 2008, orig. proceeding) (holding that by
granting a motion to compel discovery, the trial court implicitly overruled all of the resisting
party’s discovery objections, even though the trial court did not explicitly state in its order that it
was overruling these objections); Nexen, Inc. v. Gulf Interstate Engineering Co., 224 S.W.3d
412, 416–17 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (finding no error and proceeding to
adjudicate merits of case in which trial court did not specify whether its ruling was based upon
Texas law or Alberta law, in case in which there was a conflict-of-laws issue); In re Sears,
Roebuck & Co., 123 S.W.3d 573, 575 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding)
(holding that trial court necessarily overruled defendant’s objections to plaintiffs’ 142 discovery
requests by granting plaintiffs’ motion to compel discovery, even though, in its order, the trial
court expressly stated that it was not ruling on the defendant’s discovery objections); In re Texas
Prop. & Cas. Ins. Guar. Ass’n, 989 S.W.2d 880, 882 (Tex. App.—Austin 1999, orig.
proceeding) (holding, in a mandamus proceeding, that trial court’s order must be upheld on any
theory supported by the record, even though the trial court did not state any basis for its ruling in
the order); State Nat’l Bank v. Academia, Inc., 802 S.W.2d 282, 290 (Tex. App.—Corpus Christi
1990, writ denied) (finding no error in trial court’s failure to specify whether its ruling was based
upon Texas law or Illinois law, in case in which there was a conflict-of-laws issue, and
proceeding to adjudicate merits of the case).
15
See 123 S.W.3d at 575–80.
9
analysis, or address the issue at all.16 The trial court simply compelled discovery
without explaining its reasoning.17 Not only did the trial court fail to make an
explicit statement of the basis for its ruling on the defendant’s objections to the 142
discovery requests, the trial court expressly stated it was not ruling on these
objections.18 This court held that, by granting the plaintiffs’ motion to compel
discovery, the trial court necessarily overruled the defendant’s objections.19 While
explanations are often helpful, usually appreciated, and sometimes included, they
are not required in an order compelling discovery or granting protection from it. A
trial court need not expressly state the reasoning behind its rulings nor identify
which of the losing party’s arguments the trial court is rejecting.20 By making its
discovery ruling, a trial court impliedly considers and rejects all of the losing
party’s arguments.21 That is precisely what happened in today’s case. The trial
court did not abuse its discretion when it failed to make an express statement in its
orders that the requested documents are within the scope of the discovery allowed
by section 21.556(a).22
16
See id. at 575–76.
17
See id.
18
See id. at 575.
19
See id.
20
See Axelson, Inc., 798 S.W.2d at 555–56; In re Kenefick, 2008 WL 3833842, at *5–6; Nexen,
Inc., 224 S.W.3d at 416–17; In re Sears, Roebuck & Co., 123 S.W.3d at 575; In re Texas Prop.
& Cas. Ins. Guar. Ass’n, 989 S.W.2d at 882; State Nat’l Bank, 802 S.W.2d at 290.
21
See In re Kenefick, 2008 WL 3833842, at *5–6; In re Sears, Roebuck & Co., 123 S.W.3d at
575.
22
See Axelson, Inc., 798 S.W.2d at 555–56; In re Kenefick, 2008 WL 3833842, at *5–6; Nexen,
Inc., 224 S.W.3d at 416–17; In re Sears, Roebuck & Co., 123 S.W.3d at 575; In re Texas Prop.
& Cas. Ins. Guar. Ass’n, 989 S.W.2d at 882; State Nat’l Bank, 802 S.W.2d at 290.
10
Even if it were an abuse of discretion for the trial court to fail to state
expressly in its orders whether the requested documents are within the
scope of the discovery allowed by section 21.556(a), mandamus relief still
would not be appropriate because the trial court has not refused a request
that it make such an express statement.
Mandamus relief generally requires a predicate request for an action and a
refusal of that request.23 But, the requirement that there be a predicate request and
an adverse ruling is excused when such a request would have been futile and the
trial court’s refusal is little more than a formality.24 To determine whether a request
would have been futile, the reviewing court examines whether the request would
have added anything for the trial court’s consideration.25 Platinum moved for a
protective order, and the trial court ruled on that motion. The Shareholders moved
to compel production of the requested documents, and the trial court ruled on that
motion and overruled Platinum’s discovery objections. Even if, contrary to the
above analysis, there were a requirement that the trial court expressly state in its
order that all of the requested documents are within the scope of the discovery
allowed by section 21.556(a), a failure to satisfy that requirement would not be a
basis for granting mandamus relief in this proceeding because no party requested
that the trial court make such a statement in its orders, and thus the trial court did
not refuse any such request. And, because such a request would have added
something for the trial court’s consideration and would not have been futile, even
23
Axelson, Inc., 798 S.W.2d at 556.
24
See In re Le, 335 S.W.3d 808, 814–15 (Tex. App.—Houston [14th Dist.] 2011, orig.
proceeding).
25
See id.
11
if an express-statement requirement existed, the failure to meet it would not
provide a basis for granting today’s mandamus relief.26
Is mandamus relief appropriate based upon the trial court’s purported
application of Nevada law?
The majority conditionally grants mandamus relief and states that the trial
court abused its discretion to the extent it required production of the 43 categories
of documents at issue based upon Nevada law under section 21.562(a). Though
the majority does not state whether the trial court required this production based
upon Nevada law under section 21.562(a),27 the majority appears to base its
decision to grant mandamus relief on a conclusion that the trial court abused its
discretion by applying Nevada law under this provision. This possible basis for
mandamus relief is not supported by the law or the record.
Under binding precedent, this court must presume that the trial court
based its discovery rulings upon section 21.556(a) and Texas law rather
than Nevada law under section 21.562(a).
Under Texas law, in both original proceedings and appeals, the trial judge is
entitled to a presumption that he correctly applied the law.28 If nothing in the
record rebuts this presumption, then the trial court is deemed to have applied the
law correctly in making its ruling.29 Specifically in the context of conflict-of-laws
issues, appellate courts have held that, if the parties dispute which jurisdiction’s
26
See Axelson, Inc., 798 S.W.2d at 556; In re Le, 335 S.W.3d at 814–15.
27
See ante at p.12–14.
28
Vickery, 5 S.W.3d at 251; Ex parte Jackson, 911 S.W.2d at 234.
29
Vickery, 5 S.W.3d at 251; Ex parte Jackson, 911 S.W.2d at 234; Nexen, Inc., 224 S.W.3d at
416–17; State Nat’l Bank, 802 S.W.2d at 290.
12
law should be applied and the record does not reflect which jurisdiction’s law the
trial court applied, appellate courts should presume that the trial court applied the
law of the jurisdiction that should have been applied under a correct legal
analysis.30
Platinum and the Shareholders dispute whether Texas law and section
21.556(a) apply or whether under section 21.562(a), Nevada law applies. Under a
correct legal analysis, the trial court should have applied Texas law and section
21.556(a) rather than Nevada law under section 21.562(a). Nothing in the record
shows that the trial court did the latter. Therefore, under binding precedent, the
trial court is deemed to have done the former and to have held that all requested
documents fall within the scope of the discovery allowed under section
21.556(a).31 By not basing this court’s analysis on the presumption that the trial
court applied Texas law and section 21.556(a), today’s decision conflicts with
precedents from this court and from the other Houston-based court of appeals.32
30
See Nexen, Inc., 224 S.W.3d at 416–17 (holding that court of appeals would presume that the
trial court correctly applied Alberta law rather than Texas law because appellate courts presume
the trial court correctly analyzed the conflict-of-laws issues and applied the correct law and
because the record was silent as to which jurisdiction’s law the trial court applied in making the
challenged ruling); State Nat’l Bank, 802 S.W.2d at 290–91 (holding that court of appeals would
presume that the trial court correctly applied Illinois law rather than Texas law because appellate
courts presume the trial court correctly analyzed the conflict-of-laws issues and applied the
correct law and because the record was silent as to which jurisdiction’s law the trial court applied
in making the challenged ruling).
31
Vickery, 5 S.W.3d at 251; Ex parte Jackson, 911 S.W.2d at 234; Nexen, Inc., 224 S.W.3d at
416–17; State Nat’l Bank, 802 S.W.2d at 290.
32
See Vickery, 5 S.W.3d at 251; Ex parte Jackson, 911 S.W.2d at 234; Nexen, Inc., 224 S.W.3d
at 416–17. The First Court of Appeals District and the Fourteenth Court of Appeals District both
are composed of the counties of Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston,
Grimes, Harris, Waller, and Washington. See Tex. Gov’t Code Ann. 22.201 (West 2013).
13
Instead of creating confusion in the law and uncertainty in the region’s
jurisprudence, this court should presume that the trial court applied Texas law and
determined that all requested documents fall within the scope of the discovery
allowed under section 21.556(a).
This court must uphold the trial court’s orders under any legal theory
supported by the record.
In both appeals and original proceedings, if the trial court does not specify
the basis of its order, this court must uphold the trial court’s order under any legal
theory supported by the record.33 The majority determines that Texas law and
section 21.556(a) apply rather than Nevada law. Thus, to the extent the record
reflects that the requested documents fall within the scope of the discovery allowed
under section 21.556(a), the trial court did not abuse its discretion in compelling
their production. But, rather than deciding whether the trial court abused its
discretion by impliedly determining that all requested documents fall within the
scope of section 21.556(a), the majority conditionally grants mandamus relief and
orders the trial court to make an express determination regarding the extent to
which the discovery of the documents requested is permitted by section
33
See Douglas, 2012 WL 5921200, at *7 (holding that, when trial court does not specify the
basis for its ruling in its order, appellate courts must uphold the order on any legal theory
supported by the record); In re Texas Prop. & Cas. Ins. Guar. Ass’n, 989 S.W.2d at 882
(holding, in a mandamus proceeding, that trial court’s order must be upheld on any theory
supported by the record, even though the trial court did not state any basis for its ruling in the
order).
14
21.556(a).34 This decision conflicts with precedents requiring that this court
uphold the trial court’s order under any legal theory supported by the record.35
Is today’s new rule a good idea?
Texas trial courts have limited time and limited resources. This combination
makes it challenging for them to issue written orders that detail their legal
reasoning and conclusions, especially when the ruling resolves a discovery dispute
that involves dozens of document requests and multiple objections to these
requests. Though in some areas of the law, trial courts are required to express their
reasoning and legal conclusions, there is no such requirement for rulings on
quotidian discovery disputes.36 The majority’s new rule, if followed in the future,
will impose an unwarranted burden on trial courts, unnecessarily increase the cost
of litigation, and delay the resolution of disputes, all without any apparent benefit.
Worse yet, the new rule will inflict collateral damage in the form of a split of
authority in the ten-county jurisdiction this court shares with the First Court of
Appeals. Discovery disputes should be resolved quickly and efficiently. Today’s
ruling obliges a trial judge to express reasoning and conclusions as to each possible
ground underlying every discovery ruling or risk being ordered to do so by writ of
mandamus. Trial judges that undertake the task will have a substantial new burden
on their time and resources and those that do not will be forced into an unwelcome
34
See ante at pp. 12–14.
35
See Douglas, 2012 WL 5921200, at *7; In re Texas Prop. & Cas. Ins. Guar. Ass’n, 989
S.W.2d at 882.
36
See Axelson, Inc., 798 S.W.2d at 555–56; Douglas, 2012 WL 5921200, at *7; In re Kenefick,
2008 WL 3833842, at *5–6; Nexen, Inc., 224 S.W.3d at 416–17; In re Sears, Roebuck & Co.,
123 S.W.3d at 575; In re Texas Prop. & Cas. Ins. Guar. Ass’n, 989 S.W.2d at 882; State Nat’l
Bank, 802 S.W.2d at 290.
15
ping-pong match, in which they serve the ruling and the appellate court returns it
for an express statement of the trial court’s reasons. Because trial courts often do
not express their reasoning and legal conclusions in discovery orders, the
majority’s new rule will result in this court granting ―extraordinary‖ relief in very
ordinary circumstances. If mandamus relief is granted on this purely procedural
basis, what could have been resolved in a single mandamus proceeding will require
repeat visits to the appellate court.
If the trial judge in this proceeding does not change his mind, then he will
sign an order expressly stating that each category of requested documents falls
within the scope of the discovery allowed under section 21.556(a) and the disputed
documents are discoverable. If the trial judge does change his mind, then he will
issue a different order specifying the extent to which he concludes that the
requested discovery falls within the scope of the discovery allowed under section
21.556(a) and is discoverable. In either event, unless Platinum and the
Shareholders both are satisfied with the trial court’s order, this court is likely to see
yet another mandamus petition, and the next time this court will have to answer the
same question presented today—To what extent, if any, do the requested
documents fall within the scope of the discovery allowed by section 21.556(a)? It
would be more efficient—and in keeping with binding precedent—to apply the
existing rule.
For all of these reasons, this court should determine today the extent, if any,
the documents requested fall outside the scope of the discovery permitted by
section 21.556(a) and grant mandamus relief to the extent the trial court compelled
16
discovery or denied protection as to these documents. Because this court chooses
not to do so, I respectfully dissent.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Boyce and Jamison. (Boyce, J.,
majority).
17