in Re the Woodlands Country Club

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-07-352 CV ____________________ IN RE THE WOODLANDS COUNTRY CLUB Original Proceeding MEMORANDUM OPINION The Woodlands Country Club filed a petition for writ of mandamus seeking relief from a discovery order in a proceeding to take a pre-suit deposition. The real parties in interest, James Kelly and Elizabeth Kelly, issued a subpoena duces tecum for documents covering January 1, 2002, to the present and relating to prices charged for Club memberships, reduced pricing for particular individuals, marketing of Club memberships, and the name and location of each owner of a Club interest. The trial court denied the Relator's motion for a protective order and overruled its objections to the subpoena duces tecum. We stayed the production of documents pursuant to subpoena duces tecum while we considered the petition and response. At the time the trial court issued its order, the matter was before the trial court as a pre-suit petition to take a deposition in investigation of a claim. See Tex. R. Civ. P. 202. The trial court found that the likely benefit of allowing the deposition to investigate a potential claim outweighs the burden or expense of the procedure. See Tex. R. Civ. P. 202.4(a)(2). The Kellys' stated interest in the subject matter of the anticipated litigation "revolves around a breach of contract and deceptive practices concerning a club membership." The relator produced the Kellys' membership file, but contends documents unrelated to the Kellys' membership have no relevance to the claim under investigation. Discovery requests must be reasonably tailored to include only those matters relevant to the case. In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003). Only the Kellys' club membership is at issue, but the discovery request covers documents with no connection to the Kellys' transaction. The relator's transactions with others have no bearing upon whether the relator breached its contract with the Kellys or whether it made misrepresentations to the Kellys regarding their membership. To support its motion for protective order, the relator attached an affidavit from its managing director. The affidavit states that the Kellys' discovery requests require him to produce private and confidential information not related to the Kellys' membership and would require 240 hours of work to review 3200 files, separate the responsive documents, and redact confidential information from the responsive documents. The Kellys did not file a controverting affidavit, and the trial court ruled without conducting the evidentiary hearing requested by the relator. To be entitled to a Rule 202 deposition, the likely benefit of the deposition must outweigh the substantial burden of responding to the subpoena duces tecum. See In re Hewlett Packard, 212 S.W.3d 356, 362 (Tex. App.--Austin 2006, orig. proceeding [mand. denied]). The benefit articulated by the Kellys is that they will be able to determine whether the relator demonstrates a pattern of unconscionable activity and may discover the identity of other "victims." The ordered discovery imposes a significant burden to produce documents of marginal and speculative benefit to the Kellys. In particular, the Kellys' stated desire to search the relator's records for other potential plaintiffs underscores that they are not seeking documents tailored to their case. After the trial court entered its order, and apparently after the relator filed its petition for writ of mandamus, the Kellys amended their pleadings to state a claim for damages. Their petition for damages was not before the trial court when the trial court issued its order, and they have not provided a copy of the petition with their response to the petition for writ of mandamus. We consider only the record before the trial court when it entered the order at issue. See In re Ghanem, 203 S.W.3d 896, 898 (Tex. App.--Beaumont 2006, orig. proceeding). Finally, the Kellys argue that the relator waived its complaint regarding the pre-suit deposition because it was dilatory in seeking relief. The relator raised the burden and expense in its answer before the Kellys issued the notice of deposition, filed their objections before the deposition, requested a hearing, and filed a brief. The relator diligently pursued the protection of the courts. Mandamus is the proper remedy when the trial court orders overly broad discovery. Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995). We sustain the issue and hold that the trial court abused its discretion by ordering the relator to produce over five years of documents relating to prices charged for Club memberships, reduced pricing for particular individuals, marketing of Club memberships, and the name and location of owners of an interest in the county club. We conditionally grant the petition for writ of mandamus and direct the trial court to vacate its order of June 22, 2007, as to production requests 11 through 14. Any further discovery order must be tailored to include only matters relevant to the issues in the case, without imposing an unreasonable burden on the producing party or requiring the disclosure of private or confidential information. We are confident that the trial court will promptly comply with our opinion. The writ will issue only if the court does not do so. WRIT CONDITIONALLY GRANTED. PER CURIAM Submitted on July 19, 2007 Opinion Delivered September 6, 2007 Before McKeithen, C.J., Gaultney and Kreger, JJ.