Ex parte Nissei Sangyo America, Ltd.

• Decision Date: 29 March 1991
• Citation: 577 So.2d 912
• Parties: Ex parte NISSEI SANGYO AMERICA, LTD. (Re TWENTIETH CENTURY MARKETING, INC. v. Jerry Scott TAYLOR). 1900022.
• Court: Alabama Supreme Court

Page 912

577 So.2d 912

Ex parte NISSEI SANGYO AMERICA, LTD. (Re TWENTIETH CENTURY MARKETING, INC. v. Jerry Scott TAYLOR).

1900022.

Supreme Court of Alabama.

March 29, 1991.

Gary C. Huckaby and Stuart M. Maples of Bradley, Arant, Rose & White, Huntsville, and Stephen A. Gorman of Foran, Wiss & Schultz, Chicago, Ill., for petitioner.

David H. Meginniss of Hornsby, Watson & Meginniss, Huntsville, for respondent.

INGRAM, Justice.

Twentieth Century Marketing, Inc., sued Jerry Scott Taylor, a former employee, alleging that Taylor had breached a fiduciary duty to Twentieth Century and that he had violated his agreement not to compete with Twentieth Century after he was no longer employed by the company. During his employment with Twentieth Century, Taylor was responsible for the company's contract to act as the sales representative for Nissei Sangyo America, Ltd. (NSA), in its business dealings with the Chrysler Corporation. NSA, an Illinois-based electronics importer with operations in Alabama, sells cassette tape player mechanisms to Chrysler for installation at Chrysler's plant in Huntsville, Alabama.

In an attempt to gain more information about NSA's business dealings with Chrysler, Twentieth Century deposed Hideo Wakashita, an employee of NSA. Wakashita appeared voluntarily for the deposition, which was taken in Chicago, Illinois. During the deposition, however, a dispute arose regarding the confidentiality of certain information sought by Twentieth Century. Wakashita's counsel instructed him not to answer questions calling for information that NSA believed to constitute trade secrets. As a consequence, Twentieth Century filed a notice of intent to serve a nonparty deposition subpoena on NSA. The subpoena sought to compel a representative of NSA, designated under Rule 30(b)(6), A.R.Civ.P., to testify in Huntsville and to furnish the information that was not obtained through the deposition of Wakashita in Chicago.

NSA responded to the deposition subpoena with a motion for a protective order under Rule 26(c). The trial court ordered the deposition of NSA, but subject to a confidentiality order.

NSA petitions this Court for a writ of mandamus compelling the trial court to issue a protective order excluding from discovery specific information that it claims constitutes trade secrets and requiring that any deposition of its corporate representatives be taken in Chicago, Illinois.

The Alabama Rules of Civil Procedure vest broad discretionary power in the trial court to control the discovery process and to prevent its abuse. Ex parte Mack, 461 So.2d 799 (Ala.1984). That power is not unlimited, however, and mandamus is the proper means of review to determine whether the trial court has abused its discretion. Ex parte Sargent Indus., Inc. 466 So.2d 961 (Ala.1985). The utilization of an extraordinary writ is restricted, and, therefore, mandamus will not issue unless the right to the relief sought is clear and certain, with no reasonable basis for controversy. Ex parte Dorsey Trailers, Inc., 397 So.2d 98 (Ala.1981).

The general rule regarding petitions for the writ of mandamus in cases involving discovery was stated in Assured Investors Life Ins. Co. v. National Union Assoc., Inc., 362 So.2d 228, 231-32 (Ala.1978):

"It is well settled that the Rules on deposition and discovery are to be broadly and liberally construed. Rule 26(c) [Alabama Rules of Civil Procedure] recognizes, however, that the right to discovery is not unlimited, and the trial court has broad powers to control the use of the process to prevent its abuse by any party. The Rule does not allow an arbitrary limit on discovery; instead, it vests the trial court with judicial discretion in the discovery process. The question on review, then, becomes one of whether, under all the circumstances, the court has abused this discretion. An appellate court may not decide whether it would, in the first instance, have permitted the prayed for discovery. Furthermore, it is unusual to find abuse of discretion in these matters." (Citations omitted.)

In support of its request for the writ, NSA cites to us Ex parte Leverton, 536 So.2d 41 (Ala.1988). In Leverton, the defendant in a medical malpractice action sought to compel the plaintiff to produce his expert medical witness for deposition in Jefferson County. The witness was a resident of Atlanta, Georgia. The defendant had attempted to depose the witness in Atlanta, but the witness was uncooperative in his answers. The defendant sought to continue the deposition in Jefferson County so that the questioning could be monitored by the Circuit Court of Jefferson County. The plaintiff filed a petition for a writ of mandamus, seeking to prevent the trial court from enforcing its order that he produce his out-of-state witness for deposition in Alabama.

In determining whether issuance of that writ was warranted, this Court held that an Alabama trial court does not have jurisdiction over a nonparty, out-of-state witness. This Court noted, however, that the trial court order did not require the out-of-state, nonparty witness to appear in Jefferson County for deposition, but ordered the plaintiff to make his expert witness available for deposition in Jefferson County. This Court determined that the trial judge, under his general power to control his court and his trial docket, had the power to require the plaintiff to produce the recalcitrant witness for deposition in Jefferson County. Leverton, supra.

We find the facts in Ex parte Leverton to be distinguishable from this case, because here, unlike the witness in Leverton, NSA has submitted itself to the jurisdiction of the courts of this state. The basis of the trial court's...