Ex parte Horton Homes, Inc

In Ex parte Horton Homes, Inc., 774 So. 2d 536 (Ala. 2000) the defendants filed several requests for production along with their May 19, 1999, complaint; Horton Homes responded on July 15, 1999. On August 30, 1999, the defendants filed a motion to compel discovery, citing numerous theories, supported by caselaw, as to why the requested documents were not beyond the scope of discovery and were reasonably calculated to lead to admissible evidence. On September 2, 1999, Horton Homes stated in a one-page response that it stood behind its previous discovery responses and objections, and it requested a full hearing on all issues presented in the motion to compel. On October 14, 1999, the court held a hearing on the motion to compel. After the hearing, but on the same day, the court ordered Horton Homes to produce the requested documents. On October 27, 1999, Horton Homes moved the court to "reconsider" the October 14 order; "in that motion, for the first time, it offered additional reasons why it considered the requests for production to be beyond the bounds of discovery" and "also asserted, for the first time, that [the plaintiffs'] requests were 'overly broad, unduly burdensome, [and] not reasonably limited in time, scope and geographical area.'" 774 So. 2d at 538. On October 29, 1999, the trial court denied Horton Homes' motion to reconsider. By the order of October 14, 1999, Horton Homes' response to the plaintiffs' requests for production was due within 21 days from that date, i.e., no later than November 4, 1999. However, Horton Homes did not respond by that date. On November 19, 1999, Horton Homes moved for a protective order, pursuant to Rule 26(c), Ala.R.Civ.P. In its motion for a protective order, Horton Homes articulated the same two arguments it had presented in its motion for reconsideration. However, in further support of its motion, Horton Homes submitted for the first time an affidavit stating that production of some of the documents sought would be unduly burdensome because of the large number of files Horton Homes would have to search in order to comply, and the manner in which those records were kept. The trial court denied the motion for a protective order. Horton Homes then petitioned this Court for a writ of mandamus. The Court stated: "In Ex parte Reynolds Metals Co., 710 So. 2d 897 (Ala. 1998), this Court determined that orders compelling discovery are reviewable by mandamus petition only if the objecting party has properly moved for a protective order pursuant to Rule 26(c), Ala.R.Civ.P. ... "Simply put, Reynolds Metals stands for the proposition that a party dissatisfied with the trial court's ruling on a motion to compel discovery must first make a timely motion for a protective order, so as to create a record to support the essential allegation that the petitioner has no other adequate remedy. Id. The motion for a protective order pursuant to Rule 26(c) and any subsequent mandamus petition must be filed within the time period set for production by the trial court in its order compelling discovery. See Reynolds Metals, 710 So. 2d at 899 ('Under Rule 26(c), Ala.R.Civ.P., Reynolds may move the trial court for a protective order at any time before the expiration of the 21-day period prescribed in the order compelling discovery.'); see, also, Brittain v. Stroh Brewery Co., 136 F.R.D. 408, 413 (M.D.N.C. 1991) (interpreting parallel Rule 26(c), Fed.R.Civ.P., to require that a motion for a protective order be filed in a timely or seasonable manner); Wang v. Hsu, 919 F.2d 130, 131 (10th Cir. 1990) (stating that a motion for a protective order is timely if made before the date set for the discovery); United States v. International Bus. Machs. Corp., 70 F.R.D. 700, 701 (S.D.N.Y. 1976) ('Such motions under Rule 26(c) must be served before the date set for production'); 8 C. Wright et al., Federal Practice and Procedure 2035 (1994); Rule 26, Ala.R.Civ.P., cmt. (discussing the federal rule upon which Alabama Rule 26(c) was modeled and citing Wright & Miller, Federal Practice and Procedure 2035). "The trial court's October 14, 1999, order allowed Horton Homes 21 days to comply with the plaintiffs' discovery requests. Although Horton Homes filed a motion to reconsider on October 27, 1999, this motion was denied by the trial court on October 29, 1999, and, therefore, did not stay the running of the 21 days. Thereafter, November 4, 1999, the 21st day, came and went without the required production. Horton Homes finally filed a motion for a protective order on November 19, 1999, more than two weeks after the trial court's 21-day period had expired. By not moving for a protective order within the 21-day period, Horton Homes waived its right to a protective order under Rule 26(c); because it waived its right to a protective order, it cannot now show a clear legal right to the relief sought, which is a prerequisite for the issuance of a writ of mandamus. See Ex parte United Serv. Stations, Inc., 628 So. 2d 501 (Ala. 1993)." (774 So. 2d at 540.)