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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-21-00385-CV

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IN RE NICHOLAS MARTENY 

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Original Proceeding

60th District Court of Jefferson County, Texas

Trial Cause No. B-199855

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MEMORANDUM OPINION

Relator Nicholas Marteny filed a petition for a writ of mandamus and a motion 

for temporary relief in a legal malpractice suit. Marteny complains the trial court 

clearly abused its discretion by denying his motion to compel written discovery of

settlements obtained in the BP Deepwater Horizon litigation by other clients of the 

defendants, Real Parties in Interest Brent W. Coon, PC d/b/a Brent Coon & 

Associates and Brent Coon (collectively “BCA”). Marteny claims the trial court’s 

denial of the requested discovery severely compromises his ability to present any 

case at all because his legal expert’s opinion regarding Marteny’s damages will be 
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conclusory if he is unable to analyze the settlements. After reviewing Relator’s 

petition and the response of the Real Parties in Interest, we conclude that Relator has 

failed to establish he is entitled to the relief sought in his petition.

In 2020, we reversed the trial court’s grant of BCA’s traditional motion for 

summary judgment, holding in part that BCAfailed to conclusively negate damages

to Marteny, a merchant mariner, resulting from the government-imposed 

moratorium on offshore drilling following the Deepwater Horizon oil spill. Marteny 

v. Coon, 2020 WL 5666567, at *5-6 (Tex. App.—Beaumont Sept. 24, 2020, no pet.)

(mem. op.). Noting that BCA filed suit on behalf of over 4,000 plaintiffs arising from 

the same oil spill, some of whom had moratoria-only claims, and that BCA claimed 

the information concerning other clients was privileged, we held the trial court erred 

by denying Marteny’s request to defer ruling on the motion for summary judgment 

until he could obtain written discovery regarding settlement information of other 

clients similarly situated to him, who sustained economic losses as a result of the oil 

spill and subsequent moratoria. Id. at *7. We remanded the case to the trial court to 

order the production of an adequate privilege log and development of an affidavit or 

other testimony, so that the trial court could properly assess the applicability of the 

asserted privileges. Id. at *8.

On remand, Marteny filed a motion to rule on his motion to compel discovery. 

BCA responded that whether there were any responsive documents depended upon 
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whether a “similar client” was limited to a BCA client who pleaded and answered 

discovery with damages from the BP Deepwater Horizon oil spill with only 

moratorium damages or also included any individual who received a recovery from 

BP. On January 19, 2020, the trial court ordered production but reconsidered after 

the parties submitted additional briefing and BCA argued that Marteny’s discovery 

requests were a fishing expedition seeking privileged information and that any 

claims that resulted in settlement had been made by individuals whose losses were 

due in part to the moratorium and in part to the oil spill itself. BCA argued that the 

privilege log and spreadsheet of mixed-claim settlements that it provided to the trial 

court for in-camera inspection demonstrated that if produced the information would 

be of little use to Marteny unless BCA provided additional privileged information 

about its clients. BCA filed amended objections to Marteny’s second set ofrequests 

for production, asserting therein that BCA had identified 444 clients in the marine 

transportation, marine industry, refinery/oil industry/oil rig moratorium categories,

and “a small subset of Clients who appear to have been Merchant Marines[,]” and 

BCA complained that Marteny’s request for information about “similar clients” 

“amounts to a fishing expedition” and required disclosure of information protected 

by attorney-client and work product privileges and subject to a confidentiality order 

issued by the MDL court. 
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The trial court held a hearing on January 21, 2021. BCA explained that some 

of its clients worked in an offshore capacity but were involved in a shrimping 

settlement, others were oil rig workers, and some were small boat operators like 

Marteny. Marteny argued BCA’s privilege log failed to meet the requirements of 

Rule 193.1 On January 27, 2021, BCA submitted an amended privilege log that 

identified clients by an identification number and noted the general occupation type 

and whether the client was a merchant marine, but redacted claim submissions, the 

amount for settlement demands, the final settlement amounts, and the personal 

identifying information for each client. The trial court reviewed an unredacted 

privilege log in camera, as well as an affidavit that quoted the language of the 

confidentiality order imposed by the federal MDL court that presided over the 

settlements about which Marteny sought to compel discovery.2

On October 7, 2021, the trial court denied Marteny’s motion to compel 

without elaboration.In his mandamus petition, Marteny argues the information BCA 

withheld is permissible discovery in a legal malpractice case stemming from mass 

tort litigation. “[L]egal-malpractice damages are the difference between the result 

1See Tex. R. Civ. P. 193.3(b) (requiring withholding party on request to 

describe the information or materials withheld to serve a response that, without 

revealing the privileged information itself or otherwise waiving the privilege, 

enables other parties to assess the applicability of the privilege and asserts a specific 

privilege for each item or group of items withheld).

2The trial court provided the documents that were reviewed in camera to this 

Court.
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obtained for the client and the result that would have been obtained with competent 

counsel.” Elizondo v. Krist, 415 S.W.3d 259, 263 (Tex. 2013). In Elizondo, the Court 

noted that, because the defendant in that case had settled thousands of cases and 

made the business decision not to try any cases to a verdict, an expert could base his 

opinion of malpractice damages on a comparison of what similarly situated plaintiffs 

obtained from the same defendant. Id. “[I]n a mass tort litigation involving thousands 

of similar claimants and arising out of the same event, the expert measures the ‘true’ 

settlement value of a particular case by persuasively comparing all the circumstances 

of the case to the settlements obtained in other cases with similar circumstances 

arising from the event.” Id.

Marteny argues the trial court abused its discretion by failing to compel 

discovery because BCA failed to produce an adequate privilege log, failed to 

produce the documents identified in the privilege log for in-camera inspection, failed 

to make a prima facie case of privilege, and provided insufficient evidence of the 

confidentiality order because it was based on information and belief of the affiant. 

Marteny argues the trial court abused its discretion by sustaining BCA’s objection 

that the discovery requests were an impermissible “fishing expedition” because BCA 

obscured the objection in violation of Rule 193.2(e) by repeating the same objection 

to each discovery request. See Tex. R. Civ. P. 193.2(e) (“An objection that is not 

made within the time required, or that is obscured by numerous unfounded 
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objections, is waived unless the court excuses the waiver for good cause shown.”).

He argues information about BCA’s “similarly situated clients seeking moratorium 

losses” is the best evidence of Marteny’s damages. See Elizondo, 415 S.W.3d at 263. 

According to Marteny, counsel for BCA could identify some 444 similarly situated 

clients with moratorium claims but who, unlike Marteny, received settlements. 

Texas Rule of Civil Procedure 192.3 permits a party to “obtain discovery 

regarding any matter that is not privileged and is relevant to the subject matter of the 

pending action, whether it relates to the claim or defense of the party seeking 

discovery or the claim or defense of any other party.” Tex. R. Civ. P. 192.3(a).

Discovery requestsmust be “reasonably tailored to include only matters relevant to 

the case.” In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998) (orig. 

proceeding). “A central consideration in determining overbreadth is whether the 

request could have been more narrowly tailored to avoid including tenuous 

information and still obtain the necessary, pertinent information.” In re CSX Corp., 

124 S.W.3d 149, 153 (Tex. 2003) (orig. proceeding). “Overbroad requests for 

irrelevant information are improper whether they are burdensome or not[.]” In re 

Allstate Cty. Mut. Ins. Co., 227 S.W.3d 667, 670 (Tex. 2007) (orig. proceeding). “It 

is the discovery proponent’s burden to demonstrate that the requested documents fall 

within the scope-of-discovery of Rule 192.3.” In re TIG Ins. Co., 172 S.W.3d 160, 

167 (Tex. App.—Beaumont 2005, orig. proceeding). An overbroad discovery 
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request is one that seeks irrelevant information that is not properly tailored to the 

dispute at hand as to time, place, and subject matter. In re Nat’l Lloyds Ins. Co., 507 

S.W.3d 219, 226 (Tex. 2016) (orig. proceeding); see also In re Alford ChevroletGeo, 997 S.W.2d 173, 180 n.1 (Tex. 1999) (orig. proceeding) (“We have identified 

as overbroad requests encompassing time periods, products, or activities beyond 

those at issue in the case—in other words, matters of questionable relevancy to the 

case at hand.”). When a party propounds overly broad requests, the trial court must 

either sustain the objection or act to narrowly tailor the requests. In re Mallinckrodt, 

Inc., 262 S.W.3d 469, 474 (Tex. App.—Beaumont 2008, orig. proceeding).

BCA repeatedly complained to the trial court that Marteny’s definition of 

“similarly situated clients” was too vague to discern which of its clients were 

“similar situated” and which were not. Marteny defined the term as 

those clients or plaintiffs you represented in claims with the GCCF, the 

Settlement Program, any other settlement or claim program relating to 

the spill, or in litigation against BP arising out of the Deepwater 

Horizon Oil Spill that occurred on or about April 20, 2010 and who 

were oil service, exploration or marine workers, providers, or suppliers 

that, like Marteny, claimed to suffer economic losses as a result of the 

oil spill or the moratorium issued by the United States Department of 

the Interior following the spill.

The discovery requests required BCA to produce information about oil rig workers 

and persons whose occupations were not at all similar to Marteny’s occupation as a 

small boat operator. More importantly, it should be noted that Marteny’s claims were 

solely for moratorium damages; however, the discovery requests required BCA to 
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produce information not only for moratorium damage claims, but also for oil spill 

damage claims. Faced with a facially overbroad request for discovery, the trial court 

had the discretion to narrowly tailor the request or to deny the motion to compel. 

We conclude Marteny has not shown that the trial court clearly abused its discretion. 

Accordingly, we deny the petition for a writ of mandamus. See Tex. R. App. P. 

52.8(a). The motion for temporary relief is denied as moot. 

PETITION DENIED.

PER CURIAM

Submitted on December 21, 2021

Opinion Delivered February 3, 2022

BeforeGolemon, C.J., Kreger and Horton, JJ.