Supreme Court of Texas

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No. 21-0134

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In re Contract Freighters, Inc., d/b/a CFI, and Randall Scott 

Folks,

Relators

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On Petition for Writ of Mandamus

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PER CURIAM

Relator Contract Freighters, Inc. and Randall Folks (CFI) filed a 

petition for writ of mandamus challenging certain discovery rulings in 

the underlying vehicle-collision lawsuit. After this Court requested a 

response to the petition, the real parties in interest—Jimmy and Paula 

McPherson—withdrew the discovery requests that CFI had challenged. 

This step, the McPhersons contend, renders CFI’s petition moot and 

deprives this Court of jurisdiction. Such a unilateral withdrawal is 

insufficient to moot the controversy, particularly when undertaken as 

appellate scrutiny grows imminent. We thus have jurisdiction to 

proceed to the merits. We conditionally grant mandamus relief because 

the challenged rulings, which remain in place, contravene this Court’s 

precedents regarding discovery requests that are overbroad as a matter 
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of law. 

The McPhersons sued CFI and Folks for negligence, negligence 

per se, and gross negligence after Folks’s tractor trailer rear-ended the 

McPhersons’ vehicle. CFI employed Folks and owned the tractor trailer. 

The McPhersons argue that CFI is liable for Folks’s actions as his 

employer and because it (1) negligently hired, entrusted, trained, 

supervised, and retained Folks; (2) negligently established, 

implemented, and enforced safety policies and procedures; and 

(3) provided unsafe equipment. 

In the course of discovery, the McPhersons served five 

interrogatories on CFI. One of them requested the following: “For the 

previous 10 years, please list each law suit arising out of motor vehicle 

collisions involving CFI as a Defendant providing the jurisdiction, case 

style, date of collision, and date of the filing of the lawsuit.” CFI objected 

to that collision-history interrogatory as “overbroad, not likely to lead to 

relevant evidence, and seeking privileged materials.” 

The McPhersons also sought a third-party deposition of the U.S. 

Department of Transportation (USDOT) through written questions that 

requested two categories of records concerning CFI. First, the 

McPhersons sought any records of CFI’s actions or omissions that 

occurred on May 12, 2020 (the date of the accident). Second, they sought 

documents concerning CFI in general from January 1, 2010 until 

October 20, 2020. CFI moved to quash the deposition, arguing that the 

request for documents about CFI for a 10-year window was overbroad 

as to scope and time.

The trial court held two hearings on the parties’ discovery 
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disputes. After the first hearing, the trial court limited the McPhersons’ 

request for materials from USDOT to “similar collisions to the accident 

at issue occurring in the United States involving CFI vehicles similar to 

the one driven by Defendant for the past 5 years.” The McPhersons 

revised their request to USDOT to seek only documents concerning rearend collisions involving CFI from May 12, 2015 to May 12, 2020 (and 

also kept their request for any records concerning CFI actions or 

omissions that occurred on May 12, 2020). 

CFI again moved to quash, this time based on the objection that 

the McPhersons had not tailored their revised request to similar 

accidents, as the trial court had ordered. The McPhersons, in turn, 

moved to compel discovery, including a response to the collision-history 

interrogatory served on CFI. After the second hearing, the trial court 

denied CFI’s subsequent motion to quash; it also granted in part and 

denied in part the McPhersons’ motion to compel. The court limited the 

collision-history interrogatory to lawsuits arising from “rear end 

collisions occurring 5 years previous to the collision that forms the basis 

of this suit” and ordered CFI to provide a response by January 25, 2021. 

CFI sought a write of mandamus in the court of appeals, which denied 

relief.

CFI then brought a mandamus petition to this Court. After we 

requested a response to the petition, the McPhersons’ counsel notified 

CFI’s counsel that the McPhersons had withdrawn the collision-history 

interrogatory and the USDOT deposition notice. The McPhersons did 

not inform the trial court, and the trial court did not vacate its order 
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regarding the challenged discovery requests.1

The McPhersons subsequently moved to dismiss CFI’s mandamus 

petition as moot. The McPhersons are correct that this Court lacks 

jurisdiction over a moot case. See, e.g., Elec. Reliability Council of Tex., 

Inc. v. Panda Power Generation Infrastructure Fund, LLC, 619 S.W.3d 

628, 634 (Tex. 2021). Accordingly, we may not reach the merits before 

ensuring that our jurisdiction is secure. See Abbott v. Anti-Defamation 

League Austin, Sw., & Texoma Regions, 610 S.W.3d 911, 917 (Tex. 

2020).2 

A case or part of a case (like the discovery dispute here) will 

become moot if “a controversy ceases to exist between the parties at any 

stage of the legal proceedings, including the appeal.” In re Kellogg 

Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005). But mootness is 

not readily found, particularly when a party has taken steps to cause 

mootness. 

We need not delve too deeply into the law of mootness to confirm 

that the dispute here is not moot. Our opinion in In re Allied Chemical 

Corp., 227 S.W.3d 652 (Tex. 2007), shows why. In that air-pollution 

case, nearly 1,900 plaintiffs sued 30 defendants. Id. at 654. The trial 

1 The McPhersons did, however, serve amended interrogatories on CFI 

that dropped the collision-history interrogatory, and withdrew the USDOT 

deposition notice by contacting the court-reporting service that had issued the 

notice.

2 The McPhersons argue that CFI waived any mootness challenge by

failing to address mootness in its brief on the merits. In fact, CFI addressed 

the McPhersons’ mootness arguments in both its response to the McPhersons’ 

motion to dismiss and its reply brief. Regardless, questions of subject-matter 

jurisdiction are not subject to the ordinary principles of waiver.
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court set a consolidated trial for five unrelated plaintiffs with six 

months’ notice. Id. After the court of appeals denied mandamus relief, 

Defendants then sought mandamus in this Court, which granted a stay 

and called for briefing. Id. Then “the plaintiffs retreated,” and 

successfully asked the trial court to deconsolidate the cases set for trial. 

Id. at 654-55. We concluded that the withdrawal did not moot the 

mandamus petition. Id. Plaintiffs did not “give any assurance that they 

will not seek future consolidated trials,” which meant that “review [of 

the consolidation issue could] be evaded by the modification of orders 

pending mandamus proceedings . . . .” Id. We refused to “encourage 

parties to manipulate pretrial discovery to evade appellate review.” Id.

The dispute here is likewise not moot. The McPhersons and CFI 

could have compromised on the discovery requests after the trial court 

issued its discovery order, but the McPhersons instead waited until after 

this Court requested a response to CFI’s mandamus petition to 

withdraw their contested discovery requests. We cautioned in Allied 

Chemical that “[p]retrial cannot be conducted one way when appellate 

courts are looking and another way when they are not.” Id. at 655. Like 

the plaintiffs in Allied Chemical, the McPhersons have provided no 

enforceable assurances via a Rule 11 agreement, a binding covenant, or 

anything else that would provide sufficient certainty that they would 

not refile the same or similar requests if the Court dismissed CFI’s 

petition. See id. They have not submitted to the trial court any signed 

agreements accompanying a request to vacate the order.3 Unilateral 

3 The comparable dispute in Allied Chemical was not rendered moot 

even when the trial court’s orders were formally withdrawn, 227 S.W.3d at 655, 
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and unenforceable withdrawal of discovery, without any assurances that

the withdrawal is definite, and at the very hour “appellate courts are 

looking,” does not moot a discovery dispute. 

We have described the burden of “[p]ersuading a court that the 

challenged conduct cannot reasonably be expected to recur” as “heavy.” 

Matthews v. Kountze Indep. Sch. Dist., 484 S.W.3d 416, 418 (Tex. 2016) 

(quotation omitted). The McPhersons have not met that burden. Our 

jurisdiction is thus secure.

We therefore proceed to the merits. CFI argues that the collisionhistory interrogatory and the USDOT deposition notice are overbroad in 

time and scope and unlikely to lead to the discovery of useful 

information. We agree. The discovery requests, as approved by the trial 

court, require CFI and USDOT to produce records for every rear-end 

accident involving CFI nationwide from May 12, 2015 to May 12, 2020. 

These requests are not reasonably tailored to the McPhersons’ claims or 

the factual circumstances of the accident at issue in this case. 

A discovery order that compels production well outside the 

bounds of proper discovery is an abuse of discretion for which mandamus 

is the proper remedy. See In re Nat’l Lloyds Ins. Co., 449 S.W.3d 486, 

488 (Tex. 2014). Requests must show a reasonable expectation of 

obtaining information that will aid the dispute’s resolution. TEX. R. CIV.

so here—where the challenged order formally remains in effect—mootness is 

even less likely. To be clear, a trial court’s withdrawal of a challenged order 

may not be necessary to find mootness, but neither, as Allied Chemical shows, 

is such an action automatically sufficient, at least without more. A party 

asserting mootness who has not even asked the trial court to vacate the order, 

however, will find it more difficult to persuade an appellate court that the 

party’s unilateral action has mooted the dispute.
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P. 192.3(a); see In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003). 

Whether a request for discovery is overbroad is distinct from whether it 

is burdensome or harassing. In re Allstate Cty. Mut. Ins. Co., 227 S.W.3d 

667, 670 (Tex. 2007). It is improper for courts to enforce overbroad 

requests for irrelevant information regardless of whether the requests 

are burdensome. Id. 

The discovery requests at issue here are of a piece with those that 

this Court has repeatedly rejected as impermissible fishing expeditions. 

See, e.g., In re Ford Motor Co., 427 S.W.3d 396, 397 (Tex. 2014) (request 

for “detailed financial and business information for all cases the 

companies have handled for Ford or any other automobile manufacturer 

from 2000 to 2011” was overbroad); In re Dana Corp., 138 S.W.3d 298, 

302 (Tex. 2004) (request for inapplicable insurance policies covering 

fifteen years of exposure was overbroad). 

Other cases also compel a finding that the McPhersons’ requests 

were impermissibly broad. In Dillard Department Stores, Inc. v. Hall, 

we held that “a twenty-state search for documents over a five-year 

period is overly broad as a matter of law.” 909 S.W.2d 491, 492 (Tex. 

1995) (emphasis added). In that false-arrest case, the trial court ordered 

a company with stores in twenty states to produce (1) every claim file 

and incident report for a five-year period that involved allegations of 

false arrest, civil rights violations, and excessive use of force and (2) a 

computer-generated list of those claims. Id. The requests in this 

vehicle-collision lawsuit for a list of unrelated lawsuits in which CFI was 

previously involved and for USDOT records from all fifty states over a 

five-year period are also overly broad as a matter of law. 
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Similarly, in In re National Lloyds, we found insurance claims of 

unrelated third parties to be outside the proper scope of discovery in a 

dispute between an insured and insurer. 449 S.W.3d at 489-90.. 

“Scouring claim files in the hopes of finding similarly situated claimants 

whose claims were evaluated differently from [the plaintiff’s] is at best 

an impermissible fishing expedition.” Id. at 489 (quotation omitted). 

Scouring a list of lawsuits and USDOT records from all over the country 

here, with the hope of finding similarly situated accidents, is likewise 

an impermissible fishing expedition.

The McPhersons do not attempt to show how a nationwide search 

over a five-year period reasonably advances their claims against CFI. 

To further extend the familiar metaphor, such requests, without 

appropriate limits as to “time, place or subject matter,” are “not merely 

an impermissible fishing expedition; [they are] an effort to dredge the 

lake in hopes of finding a fish.” Texaco, Inc. v. Sanderson, 898 S.W.2d 

813, 815 (Tex. 1995). 

Because the discovery ordered is overbroad, the trial court abused 

its discretion and mandamus is the proper remedy. Therefore, without 

hearing oral argument, pursuant to Texas Rule of Appellate Procedure 

52.8(c), the Court conditionally grants a writ of mandamus to direct the 

trial court to vacate its order granting the McPhersons’ motion to compel 

and denying CFI’s objection and motion to quash. See In re Deere & Co., 

299 S.W.3d 819, 820 (Tex. 2009). We trust that the trial court will 

comply, and the writ will issue only if it fails to do so. 

OPINION DELIVERED: June 17, 2022