Lawyer’s Affidavit Thwarted Mandamus Petition; Court Exceeded Discretion By Ordering More Discovery Than Requested

The Alabama Supreme Court partly granted a mandamus petition in this discovery dispute. It first held that the substantively unchallenged affidavit of the plaintiff’s lawyer, describing an unrecorded hearing in the trial court, provided sufficient evidence to defeat the mandamus petition. It then held that the trial court had exceeded its discretion by compelling wider discovery than the plaintiff had sought. Ex parte Guaranty Pest Control, Inc., No. 1080386 (Ala. Apr. 24, 2009).

This discovery dispute deals more closely than usual with just what evidence is admissible in a mandamus “record,” and with the trial court’s discretion to order greater discovery than a party requests.

Brown sued Guaranty Pest Control under a contract to control wood-destroying organisms. Brown sought from Guaranty certain documents covering a period of three months. Guaranty objected to the discovery as unduly burdensome. The trial court granted Brown’s motion to compel the discovery, at which point Guaranty moved for a protective order. The court held a hearing on this motion, but the hearing was not recorded. The court denied Guaranty a protective order, and ordered it to provide the records Brown had requested for a period of six (rather than three) months. Guaranty petitioned the Supreme Court of Alabama for a writ of mandamus.


The state’s high court first recited the general requirements for obtaining mandamus, and emphasized that such writs are especially limited in discovery disputes. A discovery order may be reviewed by a mandamus petition in four situations:

(a) [W]hen a privilege is disregarded; (b) when a discovery order compels the production of patently irrelevant or duplicative documents the production of which clearly constitutes harassment or imposes a burden on the producing party far out of proportion to any benefit received by the requesting party; (c) when the trial court either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party’s entire action or defense so that, in either event, the outcome of the case has been all but determined and the petitioner would be merely going through the motions of a trial to obtain an appeal; or (d) when the trial court impermissibly prevents the petitioner from making a record on the discovery issue so that an appellate court cannot review the effect of the trial court’s alleged error.

(Citations omitted.)

Guaranty here claimed that the ordered discovery was unduly burdensome; in essence, that it “imposed a burden on the producing party far out of proportion to any benefit received by the requesting party.”


Rejecting Guaranty’s argument, the Supreme Court of Alabama first considered the material the parties had filed in connection with the mandamus petition. With his response to the petition, Brown had filed an affidavit from his lawyer, which recounted concessions that Guaranty had supposedly made at the unrecorded hearing on the protective order. According to Brown’s lawyer, Guaranty had admitted that it could identify the requested documents without difficulty. Guaranty neither disputed the substantive correctness of this assertion, nor presented contrary evidence.

The appellate court confirmed Brown’s right to file the affidavit with his mandamus response. A mandamus “record” is unlike an ordinary appellate record, the court first noted. Appellate Rule 21 obligates the parties to a mandamus proceeding to present the court with the facts necessary to understanding the issues presented. This gives “the respondent the opportunity to supplement the ‘record’ by attaching exhibits of its own,” like the lawyer’s affidavit. Nor did that affidavit attempt to introduce material “outside the record,” in the usual sense, which had not been before the trial court. To the contrary. The lawyer’s affidavit attempted “to describe proceedings before the trial court.” The affidavit was therefore proper. And, because Guaranty had not contradicted it, the appellate court took its assertions as true. Guaranty had thus “failed to establish a clear legal right to the writ,” and — with the qualification discussed immediately below —the state’s high court refused to overturn the denial of the protective order.


The trial court had exceeded its discretion, however, by compelling six months’ worth of documents when Brown had requested only three. Even Brown conceded this was a mistake by the trial court. To this extent, Guaranty had established a clear legal right to relief. Thus, insofar as it ordered Guaranty “to produce more documents than Brown requested,” the trial court’s order was reversed by mandamus.