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Click here for the full text of this decision FACTS:Exxon Corp. and related companies were defendants in consolidated suits filed by Herbert Wilkinson, Peggy Hebert and Ann Stubbs, individually and as representative of the estate of Ben Stubbs. The plaintiffs allege Herbert Wilkinson and Ben Stubbs developed cancer as a result of benzene exposure that occurred while working intermittently as contract employees on Exxon’s premises. Over a period of three years, the plaintiffs served a series of requests for production of documents, many of them unlimited in time and location. The relators objected to the scope, burdensomeness and lack of relevance of the requests but provided over 25,000 pages of documents and made its 100,000 document Exxon-Baytown Industrial Hygiene File Room (IH file room) available to the plaintiffs. The plaintiffs filed a motion to compel Exxon to comply fully with the requests. Wilkinson and Stubbs noticed another deposition of a person to testify fully as to the existence of documents previously requested in six sets of requests for production, as t 1. existence; 2. electronic creation, duplication and storage; 3. document retention and destruction policies; 4. location; 5. organization, indexing and filing; 6. method of search; 7. completeness; and 8. authenticity. Exxon objected on the grounds that the requests were “overly broad, unduly burdensome, unlimited in time and scope, and not reasonably calculated to lead to the discovery of admissible evidence.” Exxon further objected on the ground that the plaintiff’s deposition topics sought to invade the attorney-client privilege and the work product doctrines. Exxon also objected that the notice identified topics that exceeded the scope permitted by the trial court’s order. Wilkinson and Stubbs presented additional requests for production of documents the day before the scheduled deposition. Exxon produced an industrial hygienist for deposition. Generally speaking, this witness possessed extensive knowledge of Exxon’s efforts in monitoring and protecting workers at its facilities, and could explain the documents in the IH file room, but could not tell the plaintiffs that they possessed all possible responsive documents because she had not personally participated in the search. Next, Stubbs and Wilkerson filed a motion to compel compliance with the trial court’s orders regarding discovery and requested sanctions be imposed on Exxon for having produced witnesses that had no knowledge of the method of Exxon’s search for documents responsive to the requests for production. On June 8, 2006, the trial court granted the plaintiffs’ motion to compel compliance with the court order of Dec. 14, 2005, ordered Exxon to produce a deponent fully responsive to Wilkinson’s Nov. 23, 2005, notice of deposition and a deponent responsive to the same or a substantially similar type of deposition notice for Stubbs. The court ordered that the deposition take place at the Dallas offices of the plaintiffs’ lawyers, and ordered Exxon to pay the cost of the deposition. The order directed the plaintiffs to narrow the number of requests to any 30 from 200, and the plaintiffs communicated their selections by letter dated June 26, 2006. Exxon filed this petition for writ of mandamus and the court stayed the deposition pending its consideration of the petition. HOLDING:The writ of mandamus was conditionally granted. Noting that the plaintiffs had full access to the IH file room, the court characterized the plaintiffs’ approach as seeking to depose an Exxon representative for the purpose of inquiring specifically into the process by which Exxon’s representative responded to the requests for production. This subject, the court stated, necessarily and almost exclusively concerns the “mental impressions developed in anticipation of litigation or for trial by or for a party or a party’s representatives” and consists of the “attorney’s representative’s mental impressions, opinions, conclusions, or legal theories” subject to protection as work product and core work product. In this case, the court stated, the discovery is being conducted into how Exxon conducted this litigation, as opposed to Exxon’s research on benzene. The plaintiffs’ inquiry was designed to inquire into mental processes of counsel and was not reasonably calculated to lead to the discovery of admissible evidence, the court stated. The court stated that Wilkinson and Stubbs failed to establish any document withholding or other discovery abuse by Exxon. Wilkinson and Stubbs, the court stated, obtained the trial court’s permission to depose witnesses purely for the purpose of exploring Exxon’s efforts in responding to the discovery requests, without first establishing necessity for the inquiry. The court stated that the plaintiffs were engaged in “precisely the sort of fishing expedition forbidden by the Texas Supreme Court.” The court then held that the trial court abused its discretion and conditionally grant mandamus relief. The court directed the trial court to vacate its orders requiring Exxon to present a deponent responsive to plaintiffs’ Nov. 23, 2005, deposition notice or any substantially similar notice. OPINION:Per curiam; McKeithen, C.J., Gaultney and Kreger, J.J.

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