Petition for Writ of Mandamus Denied and Majority, Dissenting, and 

Concurring Opinions filed June 5, 2014.

In The

Fourteenth Court of Appeals

NO. 14-14-00365-CV

IN RE EURECAT US, INC., Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

133rd District Court

Harris County, Texas

Trial Court Cause No. 2012-25700

DISSENTING OPINION

Eurecat returns to us with this second petition for writ of mandamus arising 

from the trial court’s Rule 192.4 protective order. Previously, as the dissenting 
2

justice, I urged that the trial court’s order1is an impermissible discovery 

injunction. In re Eurecat US, Inc., 425 S.W.3d 577, 584 (Tex. App.—Houston 

[14th Dist.] 2014, orig. proceeding) (McCally, J., dissenting). The panel majority, 

on the other hand, found that it was not clear that the trial court’s order prohibited 

the subject customer discovery. See id. at 583 & n.2 (majority opinion). 

Therefore, the parties returned to the trial court where Eurecat sought 

reconsideration of the order. The trial court reaffirmed its order prohibiting the 

customer discovery. Eurecat seeks mandamus relief arguing, once again, that Real 

Parties have supplied no evidence to support their request for an order forbidding 

customer discovery—discovery that goes to the heart of Eurecat’s claims and 

defenses.

2

 By the petition and response, the parties agree that the trial court has 

forbidden Eurecat from taking discovery from Eurecat customers.

3

 Today, the 

majority nonetheless denies Eurecat’s second petition for writ of mandamus, 

 

1 The order provides that “Eurecat U.S., Inc. may not serve discovery on any customers or 

potential customers of catalyst activation services identified in the letter from Mr. Touchstone to Mr. 

Escobar dated September 18, 2013.”

2 Real Parties attempt to undercut the nature of the harm from an order prohibiting Eurecat’s 

discovery on customers by stipulating that they will not seek antitrust damages from Eurecat pertaining to 

those customers. Real Parties do not state that they have dismissed their antitrust claims, nor does the 

record reflect such. As with Real Parties’ assurances that they did not solicit Eurecat customers—“we 

promise”—Real Parties promise that Eurecat doesn’t need this discovery because when it comes time to 

offer evidence or ask the jury to fill in the damage blanks, they promise they will not include anything 

about other customers. Denial of discovery that goes to the heart of a case—as pled—renders an appeal 

inadequate. See Walker v. Packer, 827 S.W.2d 833, 843–44 (Tex. 1992). Thus, the “we promise” 

handling of discovery defies established authority permitting discovery based upon pleadings, not 

promises.

3 My concurring colleague attempts to buttress the discovery injunction with reference to Real 

Parties’ argument on trade secrets. However, to the extent that such argument previously had merit, it no 

longer does as the subject of the forbidden discovery is a list of customers of both Eurecat and Real 

Parties that is known to both parties and, thus, not a secret. To the extent that Real Parties are concerned 

that Eurecat’s undrafted, unsent discovery might ultimately implicate Real Parties’ other trade secrets, a 

prospective injunction on discovery is not an appropriate prophylactic measure. 
3

finding that Eurecat has not established itself entitled to relief. Again, I 

respectfully disagree.

In addition to the reasons I previously stated for my belief that Eurecat’s 

petition for writ of mandamus should be granted, see id. at 587–88 (McCally, J., 

dissenting), I add the following:

Real Parties have still provided no evidence

to support a Rule 192.4 Protective Order.

Real Parties urge that the trial court’s Rule 192.4 protective order is 

supported by evidence. And, Real Parties urge that the trial court conducted an 

appropriate balance to support the order as reflected in the following excerpt from 

the hearing after our decision on the prior petition:

MR. HOEG [counsel for Eurecat]: [A]s Justice McCauley [sic] 

said, [we do] not have to take their word for it, especially once 

we have already seen that they haven’t been entirely 

forthcoming.

THE COURT: Well, but Mr. Hoeg, in all fairness, Justice 

McCauley [sic] didn’t have maybe all the background of the 

letters and discussions that you actually had with Haldor 

Topsoe, which I think I maybe gently said to you may have 

been a little over the top.

MR. HOEG: Absolutely. You’re correct. Although, she did 

have some of that, but my point is that’s only—

. . . .

THE COURT: [W]hen you’ve got a whole big list and you’re 

talking about possible damage to either or both of you when 

you’re both countersuing each other basically, saying you’re 

going to damage my business. If you intimidate of threaten or at 

least insinuate that they’re [Real Parties’ customers] going to be 
4

brought in or we’re going to have a lawsuit against them, and 

that’s when you have to do a covenant not to sue, then, you 

know that’s a whole other balancing act that the Court has to 

do, the harm versus the good, you know, which is no enviable 

job for a judge; and I understand the Court of Appeals looks at 

the record and doesn’t get to see the inflection, the body 

language, the believability, the everything of all the witnesses 

and the attorneys arguing those points that the trial court has. 

Anyway, your motion is denied.

This excerpt, say Real Parties, shows the balancing that the trial court 

performed—this is the evidence considered. Real Parties point to no other 

evidence and there is none in this record.

Thus, we know that the trial court balanced Eurecat’s alleged “threats and 

intimidation” of a common customer against Eurecat’s right to request discovery 

from other common customers. But, Rule 192.4(b) compels a trial court to balance 

“the burden or expense of the proposed discovery” against “its likely benefit, 

taking into account the needs of the case, the amount in controversy, the parties’ 

resources, the importance of the issues at stake in the litigation, and the importance 

of the proposed discovery in resolving the issues.” Tex. R. Civ. P. 192.4(b). 

Therefore, the trial court did not perform a balancing under Rule 192.4(b). 

If Real Parties wanted the trial court to enter an order forbidding Eurecat’s

discovery on common customers on the belief that Eurecat had threatened or 

intimidated a potential witness, Real Parties should have sought relief for 

discovery abuse. Texas Rule of Civil Procedure 215.3 addresses abuses of the

discovery process: “If the court finds a party is abusing the discovery process in 

seeking, making or resisting discovery . . . , then the court in which the action is 

pending may, after notice and hearing, impose any appropriate sanction authorized 
5

by paragraphs (1), (2), (3), (4), (5) and (8) of Rule 215.2(b).” Tex. R. Civ. P. 

215.3. And, the very first sanction authorized is “(1) an order disallowing any 

further discovery of any kind or of a particular kind by the disobedient party.” 

Tex. R. Civ. P. 215.2(b)(1). However, before the trial court may issue such a 

discovery sanction, it must consider a sanction less than a total prohibition of 

discovery. See, e.g., Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). Real 

Parties did not invoke Rule 215.3 and do not attempt to uphold the trial court order 

on that basis. 

Therefore, I respectfully dissent to this court’s denial of Eurecat’s request 

for mandamus relief.

_____________________________

Sharon McCally

Justice

Panel consists of Justices Jamison, McCally, and Busby. (Busby, J., concurring) 

(McCally, J., dissenting).