consists of: Wright, C.J., Willson, J., and Bailey, J.
WRIGHT, CHIEF JUSTICE.
Monsanto Company, has filed in this court an original
mandamus proceeding related to an order entered on June 9,
2017, by the 32nd District Court of Mitchell County in Cause
No. 16643. In the order, the Honorable Judge Al Walvoord
denied Monsanto's motion to quash a subpoena for the
production of documents and to issue a protective order. We
conditionally grant Monsanto's petition for writ of
underlying cause, the plaintiffs, whose cotton crops were
allegedly damaged by the aerial application of an herbicide
and other chemicals toxic to broadleaf plants, sued Helena
Chemical Company and other defendants that were hired by
Helena to perform the aerial spraying. The plaintiffs alleged
that Helena marketed and sold the herbicide Sendero, which
contains clopyralid, a chemical toxic to cotton in miniscule
amounts. According to the plaintiffs' allegations, the
aerial application of the toxic chemical over two ranches in
Coke, Sterling, and Mitchell Counties in July 2015 drifted
onto the plaintiffs' cotton crops and caused damages to
the plaintiffs' Mitchell County crops and land.
Helena was sued, it subpoenaed the custodian of records for
Monsanto, which is not a party to the underlying cause.
Helena sent written deposition questions to Monsanto and also
requested that Monsanto produce "any and all
records" related to "Bollgard II XtendFlex cotton
seed and/or XtendFlex cotton seed." Helena specifically
requested the following documents: (1) documents that show
the identity of each grower in Reagan County or Mitchell
County who purchased the specified cotton seed from January
1, 2014, "through the present"; (2) documents that
show the identity of each grower in Reagan County or Mitchell
County who purchased any other type of seed with the Xtend
trait from January 1, 2014, "through the present";
(3) documents that show the date, type of seed,
seller/distributor, and amount of each purchase by the
growers described in (1) and (2) above; (4) copies of any
warning related to the use of dicamba herbicide provided to
the growers described in (1) and (2) above; and (5)
technology agreements for each of the growers described in
(1) and (2) above.
response to the subpoena, Monsanto filed a combined motion to
quash the subpoena for the production of documents and motion
for a protective order. Helena asserts that, by its subpoena,
it seeks to determine a potential alternative source for the
damage to the plaintiffs' crops, arguing that the growers
who purchased dicamba-tolerant seeds may have applied dicamba
products to their crops, which may have caused the damage to
the plaintiffs' crops. Helena asserts that dicamba causes
physical symptoms in cotton that are indistinguishable from
those caused by clopyralid and that dicamba is "more
injurious" to cotton than clopyralid. Helena contends
that the discovery that it seeks from Monsanto is essential
to Helena's investigation of an alternative source of the
plaintiffs' alleged crop damage and is likely to lead to
the discovery of admissible evidence.
Walvoord denied Monsanto's motion to quash and motion for
protective order and ordered Monsanto to provide written
answers and to produce documents responsive to Helena's
subpoena. Monsanto seeks mandamus relief from that order.
Mandamus relief is appropriate only if the trial court has
abused its discretion and there is no adequate appellate
remedy. In re CSX Corp., 124 S.W.3d 149, 151 (Tex.
2003) (orig. proceeding); Walker v. Packer, 827
S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). Monsanto, as
the entity resisting discovery, has the burden to establish
these matters in this proceeding. See CSX, 124
S.W.3d at 151.
scope of discovery is generally a matter within the trial
court's discretion. Id. at 152. However,
discovery requests must be reasonably tailored to include
only relevant matters, and the trial court must make an
effort to impose reasonable limits on discovery. Id.
Discovery is limited to matters that are relevant to the
pending action. Tex.R.Civ.P. 192.3(a); Texaco, Inc. v.
Sanderson, 898 S.W.2d 813, 814 (Tex. 1995) (orig.
proceeding). A discovery order that compels production beyond
the Texas Rules of Civil Procedure constitutes an abuse of
discretion for which mandamus is the proper remedy. In re
Nat'l Lloyds Ins. Co., 449 S.W.3d 486, 488 (Tex.
2014) (orig. proceeding). The Texas Supreme Court has stated
numerous times that discovery may not be used as a fishing
expedition. Id. at 489; CSX, 124 S.W.3d at
153; In re Am. Optical Corp., 988 S.W.2d 711, 713
(Tex. 1998) (orig. proceeding); Sanderson, 898
S.W.2d at 815.
discovery requests were not limited to the relevant time
period and were not reasonably tailored to include only
relevant matters. Although discovery related to the use of
dicamba that may have drifted onto the plaintiffs' cotton
crops and damaged those crops in July 2015 would seem to be a
relevant and discoverable matter, Helena's discovery
requests were not tailored to discover that information.
Instead, Helena's discovery requests to Monsanto
constituted a fishing expedition. The discovery of
information about the purchasers of certain cotton seed from
2014 through the present in Reagan and Mitchell Counties is
not reasonably calculated to lead to the discovery of
admissible evidence regarding an alternative source for the
damage to the plaintiffs' cotton crops in July 2015. We
note that Monsanto informed both the trial court and Helena
that no farmers in Reagan or Mitchell County purchased any
dicamba-resistant seed in 2015. The information sought in
Helena's overly broad discovery requests is not relevant.
If a trial court's discovery order is overbroad, the
trial court has abused its discretion, and the order must be
vacated if an adequate appellate remedy does not exist.
CSX, 124 S.W.3d at 153. Here, Monsanto, a nonparty
to the underlying litigation, has no adequate remedy on
appeal. We conclude that Monsanto has met its burden of
establishing a right to mandamus relief.
additionally note that Helena has filed in this court a
motion to strike new evidence that Monsanto attached to its
reply brief. Because we have not considered the evidence
attached to Monsanto's reply brief, we dismiss
Helena's motion to strike as moot.
conditionally grant Monsanto's petition for writ of
mandamus. The Honorable Judge Al Walvoord is directed to
vacate the June 9, 2017 order in which he ordered Monsanto to
provide written answers and produce documents responsive to
Helena's subpoena. A writ ...