COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00429-CV

IN RE W.W. COLLINS, JR. RELATOR

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ORIGINAL PROCEEDING

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MEMORANDUM OPINION1

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The court has considered relator’s petition for writ of mandamus and is of 

the opinion that relief should be denied. Accordingly, relator’s petition for writ of 

mandamus is denied, and the stay is lifted. 

PER CURIAM

PANEL: MCCOY, J.; LIVINGSTON, C.J.; and DAUPHINOT, J.

LIVINGSTON, C.J., filed a dissenting opinion.

DELIVERED: January 17, 2013

 

1See Tex. R. App. P. 47.4, 52.8(d).
COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00429-CV

IN RE W.W. COLLINS, JR. RELATOR

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ORIGINAL PROCEEDING

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DISSENTING OPINION

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I respectfully dissent to the majority’s failure to grant some relief to relator 

W.W. Collins, Jr. The parties are in a discovery dispute relating to proof of an 

allegedly informal fiduciary relationship which is the basis of relator’s claim for 

wrongful expulsion and breach of fiduciary duty. The cause of action arose 

sometime in January 2003 when relator was allegedly wrongfully expelled from 

his fraternity. He filed suit in 2004. Some discovery proceeded, but there were 

objections and motions to compel involving a lot of the discovery. After discovery 
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hearings in July and September 2012, the trial court limited the default date for 

further discovery to the ―relevant time period,‖ from January 1, 2002 to present.

In resolving discovery disputes, courts are guided primarily by two rules of 

civil procedure: rule 192.3 and rule 192.4. See Tex. R. Civ. P. 192.3, 192.4. 

Rule 192.3 initially defines the scope of discovery as

any matter . . . 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. It is not a 

ground for objection that the information sought will be inadmissible 

at trial if the information sought appears reasonably calculated to 

lead to the discovery of admissible evidence.

Tex. R. Civ. P. 192.3(a).

Rule 192.4 imposes some reasonable limits on discovery if the ―discovery 

sought is unreasonably cumulative or duplicative, or is obtainable from some 

other source that is more convenient, less burdensome, or less expensive,‖ or if 

the burden or expense outweighs the benefit of obtaining the discovery. Tex. R. 

Civ. P. 192.4(a), (b).

An overly broad discovery order is an abuse of discretion for which 

mandamus may be a proper remedy. In re Deere & Co., 299 S.W.3d 819, 820 

(Tex. 2009) (orig. proceeding). Likewise, ―a writ of mandamus is the proper 

vehicle to attack an order denying discovery.‖ In re West, 346 S.W.3d 612, 615 

(Tex. App.—El Paso 2009, orig. proceeding) (citing In re El Paso Healthcare 

Sys., 969 S.W.2d 68, 72 (Tex. App.—El Paso 1998, orig. proceeding)). The 

party objecting to the production of discovery must present evidence to support 
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the objection. In re Deere, 299 S.W.3d at 820–21. In Deere, the challenged 

order had no time limit despite some evidence that the moving party only 

requested discovery back twelve or fifteen years. Id. at 820. The court 

remanded the case for imposition of some reasonable time period for the 

discovery period as opposed to none. Id. at 821.

In In re Allstate County Mutual Insurance Company, the supreme court 

instructed the trial courts to ―make an effort to impose reasonable discovery 

limits.‖ In re Allstate Cnty. Mut. Ins. Co., 227 S.W.3d 667, 668 (Tex. 2007) (orig. 

proceeding). Specifically, the supreme court held that discovery orders covering 

unreasonably long time periods were overbroad. Examples included requests for 

every criminal act for a time period of seven years and requests for instances of 

false imprisonment for five years in twenty states. Id. at 669. The supreme court 

noted that trial courts should consider time, location, scope, and whether the 

requests ―could easily have been more narrowly tailored to the dispute at hand,‖ 

or relevant information. Id.

This case does not involve an overly broad discovery request, however. 

The charges brought by the fraternity against relator and upon which relator’s 

expulsion was based were brought in 2002. The actual expulsion date was

January 18, 2003. The fraternity’s letter that detailed the charges against relator

specifically alleged inappropriate conduct that was to have occurred as early as 

1996. Even though the fraternity waited until 2002 to bring charges, and early 
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2003 to expel relator, this does not mean that acts occurring as far back as 1996 

are irrelevant. Because the charges relate to actions that took place in 1996, it 

seems incongruent to limit discovery to 2002 to present. For these reasons, I 

would grant relator’s request to redefine the relevant discovery period beginning 

January 1, 1996 forward.

TERRIE LIVINGSTON

CHIEF JUSTICE

DELIVERED: January 17, 2013