A mandamus petition’s timeliness is measured from the date the trial court rules on a motion for a protective order — not from the date of its earlier order compelling production of the same material. Ex parte Nationwide Ins. Co., No. 1051502 (Ala. Mar. 7, 2008).
This is an insurance coverage case. The plaintiff moved to compel the production of certain documents. The circuit court granted that motion in January 2006. The next month, before turning over the documents, the defendant sought a protective order shielding the same material from production. The trial court denied this motion on June 20, 2006. Twenty-nine days later, on July 18, the defendant petitioned the Supreme Court of Alabama for a writ of mandamus.
The plaintiff moved to dismiss the petition as untimely, claiming that it had been filed outside the 42-day “presumptively reasonable” deadline of Ala. R. App. P. 21(a)(3). The petition, the plaintiff argued, was not really directed at the June 20 denial of a protective order. Rather, it was directed at the January 2006 order which had originally compelled production. By nominally directing its petition to the June 20 order, the plaintiff continued, the defendant was trying to extend its deadline and create another opportunity to challenge the discovery ruling. Measured (as in the plaintiff’s view it should be) from the January 2006 order, the petition was late.
The state’s high court disagreed. The timeliness of the petition was correctly measured from the trial court’s disposition of the motion for a protective order. In fact, even though the circuit court had already granted a motion to compel covering the same information, precedent required the defendant to seek a protective order before it could challenge the discovery ruling by mandamus. The Court explained:
Requiring the party allegedly burdened by discovery to request a protective order from the trial court before seeking mandamus relief with this Court allows the trial court an opportunity to address its alleged error before a party seeks mandamus relief from an appellate court to correct the alleged error.
A mandamus petition filed before the circuit court had granted or denied a protective order would have been “premature.”
The defendant had filed its petition 29 days after its motion for a protective order was denied. This was within the 42-day “presumptively reasonable” deadline for mandamus petitions created by Ala. R. App. P. 21(a)(3). The petition was timely, the plaintiff’s motion to dismiss was denied, and the court proceeded to address the petition’s merits.