Alabama Supreme Court Reiterates That Motion for Protective Order is Prerequisite to Mandamus Review of Order Compelling Discovery

In Ex parte The Terminix International Company Limited Partnership, No. 1061247, the Alabama Supreme Court reaffirmed its long-standing requirement that a timely filed motion for a  protective order is a jurisdictional prerequisite to mandamus review of an order compelling discovery. 

In this case, the Perrys sued Terminix for, among other things, fraud, breach of warranty, negligence, breach of contract, and negligent training. They alleged that Terminix failed to properly inspect their residence, failed to detect a termite infestation in the residence, failed to disclose conditions in their residence that could reduce the effectiveness of treatment measures. The plaintiffs sought to compel discovery of records concerning Terminix’s dealings with other customers from 2000 through 2006.

Terminix objected to the discovery, arguing that it was overly broad, unduly burdensome, not appropriately limited in scope, and not calculated to lead to relevant evidence.  The trial court granted the motion to compel and ordered Terminix to respond to the discovery within 14 days of the order, i.e., September 19, 2007.  After the parties extended the deadline for responding and became involved in additional wrangling regarding Terminix’s responsiveness, Terminix filed a motion to reconsider and for a protective order on September 27, 2007.  The motion to reconsider was denied on April 19, 2007.  The motion for protective order was denied by separate order on May 10, 2007.  Terminix then petitioned for a writ of mandamus. 

The plaintiffs ordered that mandamus review was inappropriate because Terminix had failed to timely file a motion for a protective order.  The court agreed, noting that Terminix’s motion was filed after the time for production ordered by the trial court, as extended by the parties, had expired.  Therefore, Terminix’s petition was due to be denied because its motion for protective order was not timely filed with the trial court.